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VOLUME 49, NUMBER 2, SUMMER 2008
Of Prophets and Proselytes: Freedom of Religion
and the Conflict of Rights in International Law
Peter G. Danchin*
The case of proselytism presents a tangle of competing claims: on the one hand, the rights of proselytizers to
free exercise of religion and freedom of speech; on the other hand, the rights of targets of proselytism to
change their religion, peacefully to have or to maintain a particular religious tradition, and to be free
from injury to religious feelings. Clashes between these claims of right are today generating acute tensions
in relations between states and peoples, a state of affairs starkly illustrated by the recent Danish cartoons
controversy. Irrespective of their resolution in any particular domestic legal system, how should such conflicts be addressed as a matter of international law? In noticing that surpisingly little attention has been
paid to this question in the literature, this Article argues that the key to unlocking the puzzle is to
recognize that the right to freedom of religion and belief generates competing claims not only with other
fundamental rights such as free speech, but within the right to religious liberty itself. This insight suggests
at least three challenges to theories of rights in the Lockean and Kantian traditions: first, the problem of
the incommensurability of values, which the liberal algebra of rights is unable to reconcile; second, the
complex conceptual problems associated with rights foundationalism; and third, the intrinsic value of
communal goods and their relationship to personal autonomy. Once these limitations and blindspots in
rights discourse are acknowledged, a value pluralist approach is argued to offer a preferable path by
allowing us to reimagine liberal theory in intersubjective and hermeneutic terms.
I.
INTRODUCTION
What do the following cases have in common?
(1) A Jehovah’s Witness is arrested for violating an ordinance requiring
a permit for solicitation and for the common law offense of inciting a
breach of the peace after distributing religious materials in a predominantly Roman Catholic neighborbood and playing a phonograph record
with an anti-Catholic message to two pedestrians.1
(2) In response to sustained and successful Pentecostal missionary activity, the South African Hindu Anti-Defamation Coalition calls on
* Assistant Professor of Law, University of Maryland School of Law. B.A., LL.B. (Hons.) 1994, University of Melbourne; LL.M. 1998, J.S.D. 2006, Columbia University. The genesis of this Article was in
co-teaching two colloquia at Columbia University, the first on Religion, Human Rights, and Religious
Freedom (1997–2000), the second on Rethinking Human Rights (2003–2005). I wish to express my
gratitude to the participants in those seminars and to my former colleagues Elizabeth Cole, Louis Henkin, Peter Juviler, J. Paul Martin, Alice Miller, Andrew Nathan, Donald Shriver, Chivy Sok, Tad
Stahnke, and Michael Young for their insights and discussion on the issues explored here. I am also
grateful to Kent Greenawalt, Gerald Neuman, and Jeremy Waldron for their criticisms and comments on
earlier versions of this article; to members of the faculty at the University of Maryland School of Law for
comments on an oral presentation of the Article’s thesis; and to Michael Melick who provided skillful
research assistance. All errors and omissions are my own.
1. Cantwell v. Connecticut, 310 U.S. 296 (1940).
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“Christians, their pastors, evangelists and churches who seek to ridicule Hindus and Hindutva and cunningly convert their beloved Hindu
Sisters and Brothers to Christianity using devious means to stop doing
so.”2
(3) France bans the wearing of ostentatious religious symbols in its
public schools in part because the practice constitutes an exercise of
pressure, provocation, proselytizing, and propaganda.3
(4) The Russian Parliament enacts a law in 1997 imposing restrictions
on the activities of foreign missionaries and assigning different rights
to religious organizations on the basis of their length of presence in
Russia.4
(5) A Danish newspaper publishes twelve editorial cartoons depicting
the Islamic prophet Muhammad, leading to widespread and violent
protests both in Denmark and across the Islamic world.5
One thing these cases have in common is that they all involve the right to
freedom of religion and belief. Another is that they all involve “communicative acts”6 that raise potential rights claims beyond religious freedom, such
as to free speech, freedom of association, and freedom of assembly. Case (1)
involves questions familiar to U.S. First Amendment jurisprudence—individual claims of right both to freedom of expression and free exercise of
religion, and the extent of the state’s power to limit such rights to protect
public order. In Case (2), it is not only individual but collective rights that
appear most at stake: a situated religious, ethnic, and cultural minority asserting claims of right against what is perceived to be the harmful proselytizing activities of another group. In addition to addressing these sets of
claims, Case (3) raises further questions concerning the identity of the state
itself and its background relationship to minority groups and religion in
general. In Case (4), each of the preceding elements is present with the
further complication of a law targeting not domestic but transnational actors
and relying for its justification on complex notions of citizenship, nationalism, history, and political transition. Finally, unlike the previous examples,
2. S. AFRICAN HINDU ANTI-DEFAMATION COALITION NEWSLETTER (Durban, S. Afr.), 1997, reprinted
in Thillayvel Naidoo, Proselytism Within South Africa’s Hindu Community, 14 EMORY INT’L. L. REV. 1121,
1145 (2000).
3. Law No. 2004-228 of Mar. 15, 2004, Journal Officiel de la République Française [J.O.] [Official
Gazette of France], Mar. 17, 2004, at 5190.
4. O Svobode Sovesti i o Religioznikh Objedinenijah [On the Freedom of Conscience and Religious
Associations], Sobranie Zakonodatel’stva Rossiskoi Federatsii [SZ RF] [Russian Federation Collection of
Legislation] 1997, No. 39, Item 4465 (Federal Law No. 125-FZ).
5. Muhammeds ansigt, JYLLANDS-POSTEN, Sept. 30, 2005, reprinted in Kevin Boyle, The Danish Cartoons,
24 NETH. Q. HUM. RTS., 185–91 (2006).
6. The term “communicative acts” is from Habermas and is used here to mean an act having an
implicit telos (mutual understanding among human beings). Thus, communicative action “presupposes
the use of language as a medium for a kind of reaching understanding, in the course of which participants, through relating to a world, reciprocally raise validity claims that can be accepted or contested.”
JÜRGEN HABERMAS, THE THEORY OF COMMUNICATIVE ACTION: REASON AND THE RATIONALIZATION OF
SOCIETY 99 (Thomas McCarthy trans., 1984).
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Case (5) involves not religious speech but speech directed at ridiculing, insulting, and otherwise attacking persons holding particular religious beliefs
and convictions.
Irrespective of how such cases may be resolved in any particular domestic
legal system, how should they be addressed as matters of international law?
Do the communicative acts so described violate or are they protected by
international human rights norms regarding freedom of religion and belief
and other associated rights? What, in particular, would we need to know in
order to make such a determination? Indeed, is such a determination possible either as a matter of law or at the level of theory?
While such questions have received considerable attention as matters of
constitutional theory and in moral and political philosophy,7 they have yet
to be seriously addressed as matters of international law.8 Part of the reason
for this is the sheer complexity and interrelated nature of the normative
claims involved. The task is not merely one of untangling Hohfeldian jural
relations or analyzing the correlation between rights and duties.9 International and regional human rights instruments recognize at least four rights
directly related to religion and belief: the right to freedom of thought, conscience, and religion;10 the right to equal protection of the law, including
the prohibition of discrimination on the basis of religion;11 the right of persons belonging to religious minorities to profess and practice their relig7. Although, even here, there has been a general unwillingness in Western legal and political philosophy to recognize collective values as being of moral concern and a tacit assumption of the general correspondence between nation and state—that the political community is coterminous with a dominant
majority ethnic, religious, and cultural community. See, e.g., WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 74 (1995) (arguing that “the demands of national minorities and ethnic groups raise a deep challenge to all Western political traditions” and that these traditions
“have all been guilty of ethnocentric assumptions, or of over-generalizing particular cases, or of conflating contingent political strategy with enduring moral principle”). In the realm of law existing between
nation-states, however, such questions are not so easily avoided nor are such assumptions so obviously
made.
8. A partial exception is the recent writing of Professor Koskenniemi. See, e.g., Martti Koskenniemi,
Human Rights, Politics, and Love, 13 FINNISH Y.B. INT’L. L. 79, 85 (2002) (noting that in “every important social conflict, the claims of opposing sides may be described as rights claims” and that “sometimes
both sides are able to rely on the same right”). Koskenniemi has yet, however, to explore the conceptual
and jurisprudential implications of such conflicts for international human rights law. See also David
Kennedy, The International Human Rights Movement: Part of the Problem?, 15 HARV. HUM. RTS. J. 101, 116
(2002) (arguing that human rights “promises a legal vocabulary for achieving justice outside the clash of
political interest,” but that “[s]uch a vocabulary is not available: rights conflict with one another . . . .”).
9. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning,
23 YALE L.J. 16 (1913).
10. See, e.g., International Covenant on Civil and Political Rights art. 18, Dec. 16, 1966, 999
U.N.T.S. 171 [hereinafter ICCPR]; Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief arts. 1, 6, G.A. Res. 36/55, U.N. Doc. A/36/684 (Nov. 25,
1981) [hereinafter Declaration on Religious Intolerance]; Convention for the Protection of Human
Rights and Fundamental Freedoms art. 9, Nov. 4, 1950, E.T.S. No. 5, 213 U.N.T.S. 222 [hereinafter
ECHR]; Cairo Declaration on Human Rights in Islam arts. 10, 18(a), 24, 25, U.N. GAOR, 4th Sess.,
Agenda Item 5, U.N. Doc. A/CONF.157/PC/62/Add.18 (Aug. 5, 1990) [hereinafter Cairo Declaration].
11. See, e.g., ICCPR, supra note 10, arts. 2(1), 26; Declaration on Religious Intolerance, supra note 10,
arts. 2, 3, 4; ECHR, supra note 10, art. 14; Cairo Declaration, supra note 10, art. 1.
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ion;12 and the right to protection from incitement to discrimination,
hostility, or violence.13 In addition to these four rights, a number of other
rights and freedoms bear a close relationship to religion and belief.14 These
include most directly, as noted above, the rights to freedom of opinion and
expression, freedom of assembly, and freedom of association.15 In particular,
religious considerations have historically had a significant impact on the
scope of freedom of opinion and expression, for example, in relation to laws
prohibiting blasphemy or injury to religious feelings.
It is this overlapping constellation of rights that is the subject of my
inquiry. In order to grasp the dialectical nature of the claims involved and
get a sense of what ultimately is at stake in their resolution, the Article
narrows its scope of analysis by considering a single hypothetical law pertaining to proselytism. This approach has two virtues. First, by carefully
analyzing the tensions between the competing claims of proselytizers as subject and the targets of proselytism as object we gain critical insights into the
nature of religious freedom as a fundamental norm embedded in international law. Second, and this is the thesis of the Article, such an analysis
reveals that the right to freedom of religion and belief generates competing
claims not only with other fundamental rights (such as freedom of expression) but also within the right to religious liberty itself.
Normative conflicts of both these kinds raise serious challenges to the
determinacy and efficacy of the concept of rights and, as a direct result, to
liberal rights regimes in general. They allow us to see more clearly the extent to which liberal theory in fact rests on a particular and contingent view
of pluralism. This view is often described as being premised on the “nondiscrimination” principle, which is reflected in the twin features of the liberal
state: the “privatization” and separation of religion from the state, and the
12. See, e.g., ICCPR, supra note 10, art. 27; Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities arts. 1–4, 8(3), G.A. Res. 47/135, U.N. GAOR,
plen. mtg. 92, Supp. No. 49, Annex at 210, U.N. Doc. A/RES/47/135 (Dec. 18, 1992); Framework
Convention for the Protection of National Minorities arts. 3–5, 8, 12, 13, 15, 17, 19–21, Feb. 1, 1995,
34 I.L.M. 351 [hereinafter European Framework Convention].
13. See ICCPR, supra note 10, arts. 19, 20(2); International Convention on the Elimination of All
Forms of Racial Discrimination art. 4, Dec. 21, 1965, 660 U.N.T.S. 195 [hereinafter Race Convention];
European Framework Convention, supra note 12, art. 6; Cairo Declaration, supra note 10, art. 22.
14. As noted in numerous judicial decisions and by scholars, violations of religious freedom almost
invariably abridge other human rights, including the right to life, liberty, and the security of the person;
the right to freedom from torture, or cruel, inhuman, or degrading treatment or punishment; the right to
freedom from discrimination; the right to a fair and public hearing by an independent and impartial
tribunal; the right to freedom of movement and residence; and the right to privacy. These rights and
freedoms comprise the penumbral rights that buttress the protection accorded to freedom of religion or
belief. See U.N. Econ. & Soc. Council, Sub-Comm’n on Prevention of Discrimination & Prot. of Minorities, Study of Discrimination in the Matter of Religious Rights and Practices, at 21, U.N. Doc. E/CN.4/Sub.2/
200/Rev.1 (1960) (prepared by Arcot Krishnaswami) [hereinafter Krishnaswami Study]; John Witte, Jr.,
RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: LEGAL PERSPECTIVES xviii (Johan D. van der Vyver
& John Witte, Jr. eds., 1996).
15. Certain manifestations of religion or belief—such as the dissemination of religious or other beliefs, assembly for worship, procession or pilgrimage, or the organization of religious institutions—fall
within these other freedoms as well.
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assertion of a “neutral” public sphere that seeks to maintain its neutrality
through rigorous commitment to a scheme of individual rights. Yet on the
basis that this is merely one conception among others, so-called “value pluralists” have advanced competing accounts of pluralism that they assert constitute a more robust form of nondiscrimination. On this view, there is a
different underlying principle—that of a plurality of collective subjects asserting claims of right—and thus a different conception of the state requiring
not just non-interference with an individual’s putative sphere of liberty but
the positive promotion and protection of the religious or cultural beliefs and
identities of specific majority and minority groups.16
This second form of not liberal but value pluralism raises a host of difficulties and uncertainties for rights theory. At its core, it rests on the idea that
the plurality of valuable options and ways of life are ultimate and irreducible.17 As a doctrine in moral and political philosophy, value pluralism is
thus defined by its anti-monistic position as an ethical theory; by its view
that conflicts of values are an intrinsic part of human life and that there is no
single right answer in choosing between them; and by its insistence that
conflicts between entire ways of life suggest that not only individuals but
also communities may be the principal bearers of rights (and duties) in pluralist political orders.18
If correct, one implication of such a view is that radical choices may need
to be made when conflicts between incommensurable values break out
within the very idea of liberty itself. This implication raises the disabling
prospect that in deciding which among a rival set of “basic liberties” is to
be protected, and to what degree, we inescapably must advance controversial
arguments about the good. Given that international law recognizes not just
individual but also collective claims of right, this controversy will include
further and deeper conflicts over competing conceptions of individual and
collective goods. These are exactly the kinds of intractable difficulties that
liberal rights discourse had hoped to avoid.
The aim of the Article, however, is not to refute liberalism per se or to
map out a new theory of religious freedom, but rather to suggest that various liberal maneuvers (of the kind, for example, adopted by Rawls in advancing a “minimalist” conception of human rights in his Law of Peoples19)
cannot rescue us from this impasse. Rather, given the variety of normative
settlements both within and between different ways of life and the patchwork of dispensations actually existing in the world, the important question
for us to ask is whether we can make religious freedom more manageable
16. For discussion on these competing accounts of pluralism, see Peter G. Danchin, Suspect Symbols:
Value Pluralism as a Theory of Religious Freedom in International Law, 33 YALE J. INT’L L. 1, 13–16 (2008).
17. See JOSEPH RAZ, ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS
155–76 (1994).
18. JOHN GRAY, ENLIGHTENMENT’S WAKE: POLITICS AND CULTURE AT THE CLOSE OF THE MODERN
AGE 69, 138 (1995).
19. JOHN RAWLS, THE LAW OF PEOPLES (1999).
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from a liberal point of view. Once these limitations are recognized, I argue
that a value pluralist approach offers a preferable path.
Part II begins by analyzing the practice of proselytism under international
human rights law. This includes, in particular, the scope of valid limitations
on manifestations of religion and belief and the extent to which limitations
analysis turns on a specific conception of the mind-action dichotomy. Part
III considers the dialectics of various possible rights claims of proselytizers
and the targets of proselytism. On the side of the proselytizer, this encompasses strong claims to the free exercise of religion and to freedom of expression. On the side of the target of proselytism, however, the situation is more
complex and encompasses two distinct bundles of claims that appear to be in
tension with each other: on the one hand, the freedom to change one’s religion or belief and to receive information; on the other, the right to “have or
maintain” a religious belief or tradition and to be free from injury to religious feelings. This latter issue, in particular, has been controversial in recent
times in the Danish cartoons affair and raises the question whether speech
rising to the level of incitement to discrimination, hostility, and violence
may and should be restricted. In considering the nature and scope of these
competing claims, it is argued that different ways of thinking about religious freedom lead to a pluralism of conceptions not just of the good, but also
of the right.
Part IV then illustrates these theoretical points by describing the surprising pluralism in constitutional arrangements and conceptions of the right to
religious freedom actually existing in the world. This is illustrated by briefly
setting out the tremendous range of relationships, not only inter- but also
intra- different faith traditions and the state in national constitutions. Together, this “cultural function” of the nation-state, and its reflection in the
disparate forms of overlapping consensus achieved in the particular historical
and factual circumstances of different political communities, provides powerful evidence of both the factual and normative dimensions of value
pluralism.
Finally Part V argues that, given this great diversity, a value pluralist
approach is needed to act as a corrective to three primary limitations and
blindspots in contemporary rights discourse. First, value pluralism acknowledges that rights are subject to “disabling indeterminacies” which arise
“not merely from the open-texture of their central concepts, but more seriously from incommensurabilities among, and within, the values they invoke.”20 This feature of rights discourse is particularly acute in conflicts
20. GRAY, supra note 18, at 132. For this reason, Gray has advanced what he terms a theory of
“agonistic” liberalism, which represents “an application in political philosophy of the moral theory of
value-pluralism—the theory that there is an irreducible diversity of ultimate values (goods, excellences,
options, reasons for action, and so forth) and that when these values come into conflict or competition
with one another there is no overarching standard or principle, no common currency or measure, whereby
such conflicts can be arbitrated or resolved.” Id. at 68–69.
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involving the right to religious freedom. Second, value pluralism acknowledges, and indeed seeks to transcend, the various difficulties associated with
rights foundationalism.21 And third, value pluralism acknowledges the intrinsic and undeniable value of communal goods to personal autonomy, rendering impossible a tidy liberal theory in international law. Rather, we
should expect different models of toleration and compromised conceptions
of neutrality. It is only by recognizing these limitations that new pathways
can be found to reimagine liberal theory in intersubjective and hermeneutic
terms.
II. PROSELYTISM AND THE RIGHT TO FREEDOM
OF RELIGION AND BELIEF
Consider the following hypothetical national law:
It is an offence to make any direct or indirect attempt to intrude on the
religious beliefs of a person of a different religious persuasion with the
aim of undermining those beliefs, either by any kind of inducement or
promise of an inducement or moral support or material assistance, or
by fraudulent means or by taking advantage of his inexperience, trust,
need, low intellect, or naivety.
This appears prima facie to violate the most basic protections of international human rights law regarding freedom of religion or belief. As noted
above, all the major international human rights instruments recognize the
right to freedom of thought, conscience, and religion, including not only the
freedom to hold religious beliefs,22 but also the freedom to “manifest” those
beliefs. Article 18 of the International Covenant on Civil and Political
Rights provides as follows:
1. Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have or to adopt a religion
or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or
belief in worship, observance, practice and teaching.
21. The question of which, if any, grounds for human rights are “universal” or “foundational” is
essentially contested. For an illuminating recent discussion, see Joseph Raz, Human Rights Without Foundations (Oxford Legal Studies Research Paper No. 14/2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=999874 (advancing an antifoundational or “political conception” of human
rights).
22. Both the Human Rights Committee and the European Court of Human Rights have indicated
that the beliefs protected by provisions recognizing the right to freedom of religion include not only
religious beliefs, but, at least, other beliefs of a similar fundamental character, including atheism and
agnosticism. See U.N. Hum. Rts. Comm., General Comment No. 22, ¶ 2, U.N. Doc. CCPR/C/21/Rev.1/
Add.4 (Sept. 27, 1993) [hereinafter General Comment No. 22] (“Article 18 protects theistic, non-theistic
and atheistic beliefs, as well as the right not to profess any religion or belief.”); Kokkinakis v. Greece,
App. No. 14307/88, 260 Eur. Ct. H.R. (ser. A) ¶ 31 (1993) (Article 9 “is also a precious asset for
atheists, agnostics, skeptics and the unconcerned.”).
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2. No one shall be subject to coercion which would impair his freedom
to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to
such limitations as are prescribed by law and are necessary to protect
public safety, order, health, or morals or the fundamental rights and
freedoms of others.23
To the extent, then, that proclaiming religious experience and belief, including the attempt to persuade others to adopt new religious beliefs or
affiliations, falls within the “manifestation” of those beliefs, the law prohibiting proselytism appears to violate article 18(1). A plain reading of the law
suggests, however, that its purpose is not to prohibit all manifestations of
religious belief of this kind, but rather only to proscribe certain coercive or
harmful expressive conduct undertaken with the aim of trying to change the
religious beliefs, affiliations, or identities of others. The question then is
how to determine what type of conduct is “coercive” or “harmful,” and
whether, once so defined, proscribing conduct of this kind is compatible
with article 18.
A. Religious Views on Proselytism
Unsurprisingly, different religious traditions view this question in different ways. It is not always easy to discern, however, whether differences between religious groups concern disagreements about appropriate activities
on the one hand, or different definitions of proselytism on the other. The
Catholic Church, for example, has sought to distinguish between (proper)
acts of “Christian witness” and (improper) acts of “proselytism.”24 The Evangelical Lutheran Church in America, for its part, regards “evangelistic
23. ICCPR, supra note 10. The corresponding provisions of other international and regional instruments are based on either article 18 of the ICCPR or article 18 of the Universal Declaration of Human
Rights, G.A. Res. 217 A (III), U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948).
See ECHR, supra note 10, art. 9; American Convention on Human Rights art. 12, July 18, 1978,
O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter American Convention]; Declaration on Religious
Intolerance, supra note 10, art. 1(1).
24. “Christian witness” is defined as the “continuous act by which a Christian or a Christian community proclaims God’s acts in history and seeks to reveal Christ as the true light which shines for every
man” and is distinguished from “proselytism,” which is defined to mean “improper attitudes and behaviour in the practice of Christian witness”:
Proselytism embraces whatever violates the right of the human person, Christian or non-Christian, to be free from external coercion in religious matters, or whatever, in the proclamation of
the Gospel, does not conform to the ways God draws free men to himself in response to his
calls to serve in spirit and in truth.
Study Document, Common Witness and Proselytism, prepared in 1970 by a Joint Theological Commission
between the Roman Catholic Church and the World Council of Churches, reprinted in 23 ECUMENICAL
REV. ¶¶ 5, 8 (1971); see also J. Paul Martin & Harry Winter, Religious Proselytization, in PROSELYTIZATION AND COMMUNAL SELF-DETERMINATION IN AFRICA 29, 39 (Abdullahi Ahmed An-Na’im ed., 1999);
Tad Stahnke, Proselytism and the Freedom to Change Religion in International Human Rights Law, 1999 BYU
L. REV. 251, 255–56.
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outreach” by its adherents to be a matter of religious obligation,25 while
religious groups such as the Jehovah’s Witnesses and the Mormons carry out
evangelizing and the distribution of religious literature on a worldwide basis. In some Islamic traditions, proselytism targeted at Muslims is not permitted while proselytism by Muslims directed at nonbelievers is regarded as
a religious duty.26 Given these divergent positions, on what basis is it possible to determine which of these manifestations of religious expression and
dissemination of belief are protected by article 18?
B. Article 18 of the Covenant on Civil and Political Rights
A review of the jurisprudence of relevant international courts and committees would suggest the following considerations. First, the scope of the
freedom to manifest religion or belief is said to have both “public” and
“private” dimensions. The Universal Declaration of Human Rights, the
ICCPR, and other international instruments recognize that the freedom to
manifest religion or belief encompasses actions taken “either alone or in
community with others and [whether] in public or private.”27 It is often
noted by scholars and judges that manifestations performed in public and in
community with others are more likely to be limited than are manifestations
performed alone and in private.28 All the same, the freedom to manifest
religion has an ineliminably “public” dimension, albeit one that international human rights law deems to be subject to more far-reaching limitations than religious practice or observance in “private.” This is a complex
and critical distinction to which I shall return shortly.
Second, the freedom to manifest religion or belief is expressed in terms of
“worship, observance, teaching and practice.” Arcot Krishnaswami has commented that these four terms do not circumscribe the scope of the freedom:
25. The Evangelical Lutheran Church in America has issued a mandatory call to all Christians to
engage in “evangelistic outreach” on the basis that “[i]n Christ, God calls the church to share the gospel
in word and deed, to proclaim the Good News of Jesus Christ, and to witness to God as Creator, Redeemer, and Sanctifier.” Stahnke, supra note 24, at 256 n.7 (quoting Division of Global Mission, Evangelical Lutheran Church in America, The Role of the Missionary in the Global Mission of the Evangelical
Lutheran Church in America).
26. See Abdullahi A. An-Na’im, Islamic Foundations of Religious Human Rights, in RELIGIOUS HUMAN
RIGHTS IN GLOBAL PERSPECTIVE: RELIGIOUS PERSPECTIVES 337, 352 (John Witte Jr. & Johan D. van der
Vyver eds., 1996).
27. Universal Declaration of Human Rights, supra note 23, art. 18; see also ICCPR, supra note 10, art.
18 (“[The right to freedom of thought, conscience, and religion] shall include freedom to have or to
adopt a religion or belief of his choice, and freedom, either individually or in community with others and in
public or private, to manifest his religion or belief in worship, observance, practice and teaching.”) (emphasis added).
28. See Krishnaswami Study, supra note 14, at 22. Any limitation on the freedom to manifest religion or
belief cannot, however, be supported solely on the ground that the same manifestation is permitted in a
different context. For example, limitations on the freedom to worship in public cannot be supported on
the basis that worship in private is permitted. See Ahmad v. United Kingdom, App. No. 8160/78, 4 Eur.
H.R. Rep. 126, ¶ 5 (1982) (Eur. Comm’n H.R.).
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Bearing in mind that on the one hand the [Universal] Declaration was
prepared with a view to bringing all religions or beliefs within its compass, and on the other hand that the forms of manifestation, and the
weight attached to each of them, vary considerably from one religion to
another, it may safely be assumed that the intention was to embrace all
possible manifestations of religion or belief within the terms “teaching,
practice, worship and observance.”29
In similarly expansive terms, the Human Rights Committee has commented
that the terms “worship, observance, practice and teaching” should not be
narrowly construed and that the freedom to manifest religion or belief “encompasses a broad range of acts.”30 In this vein, various international bodies
have articulated non-exhaustive lists of acts that fall within the scope of this
freedom. Again, the specification of certain acts is not intended to exclude
other acts, but to ensure that those acts specified are included. These lists
recognize such powers as the ability to obtain an effective legal personality;
the ability to own property and make contracts; the ability to maintain
places of worship, instructional facilities for clergy, and private educational
facilities for children; the ability to print and publish religious works; the
ability to solicit donations; the ability to structure and operate institutions
according to religious doctrine without control or undue interference from
the state; the ability to maintain foreign contacts and receive foreign financial assistance and personnel; and the ability to disseminate religious
beliefs.31
On this view, our imagined law prohibiting proselytism is prima facie
overbroad and violates the freedom to manifest religion or belief.32 How,
after all, can a religious adherent bear Christian witness or evangelize without “intrud[ing] on the religious beliefs of a person of a different religious
persuasion with the aim of undermining those beliefs, either by any kind of
inducement or promise of an inducement or moral support”? Given that
proclaiming religious experience and belief is integral to many major religious traditions, it would be incongruous for the attempt to persuade another
to adopt new religious beliefs or a new religious affiliation not to be included within the freedom to manifest religion.
Despite the evident logic of this conclusion, during the drafting of international instruments the question of whether proselytism falls within the
scope of the freedom to manifest religion or belief has been a subject of
surprising dissensus. While article 12(1) of the American Convention on
29. Krishnaswami Study, supra note 14, at 17.
30. General Comment No. 22, supra note 22, ¶ 4; see also Arrowsmith v. United Kingdom, App. No.
7050/75, 19 Eur. Comm’n H.R. Dec. & Rep. 5, 203 (1980).
31. General Comment No. 22, supra note 22, ¶ 4; Declaration on Religious Intolerance, supra note 10,
art. 6.
32. Of course before such a judgment can definitively be reached, a limitations analysis of the right to
manifest religion or belief is necessary. See infra Part II.C.
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Human Rights includes the freedom to “disseminate one’s religion or beliefs,” neither proselytism nor the freedom to disseminate a religion is expressly mentioned in any of the other international instruments.33 To the
contrary, the drafting history of the ICCPR reveals that in 1947 the following italicized words were deliberately deleted from an early version of article
18 before it was finally adopted by the Commission on Human Rights:
Every person of full age and sound mind shall be free, either alone or in
a community with other persons of like mind, to give and receive any
form of religious teaching and endeavor to persuade other persons of full age
and sound mind of the truth of his beliefs, and in the case of a minor the
parent or guardian shall be free to determine what religious teaching
he shall receive.34
The absence of express recognition of proselytism or the freedom to disseminate religious beliefs in international instruments as a legitimate manifestation of religion is usually explained by pointing to the “sensitivity” of the
issue for many states. The further question of whether such a freedom can be
implied in the text of article 18(1) has been similarly contentious. By adopting a “categorical” approach to interpretation, some states have argued that
article 18(1) cannot be said to include such a right. Just as “fighting words”
or “shouting fire in a crowded theatre” have been held by the U.S. Supreme
Court not to fall within the category of protected speech under the First
Amendment,35 so too, the argument goes, proselytism falls outside the protected category of a manifestation of religion or belief in article 18(1). The
perceived virtue of such an approach is that it avoids the need for any subsequent “balancing”- or “limitations”-style analysis under article 18(3) (see
further below).36 But this strategy is ultimately unconvincing. Given the
commitment to and centrality of proselytism in so many religious traditions, on what basis can such a practice simply be excluded from the category of a manifestation of religious belief? At the least, such a determination
requires consideration of the potentially coercive or harmful effects of prose33. Certain acts associated with proselytism are, however, mentioned in international instruments. See,
e.g., General Comment No. 22, supra note 22, ¶ 4 (“freedom to prepare and distribute religious texts and
publications” is part of teaching and practice of religion); Declaration on Religious Intolerance, supra
note 10, art. 6(d) (freedom to “write, issue and disseminate relevant publications”); id. art. 6(f) (freedom
to “solicit and receive voluntary financial . . . contributions”).
34. MALCOLM D. EVANS, RELIGIOUS LIBERTY AND INTERNATIONAL LAW IN EUROPE 194 (1997)
(quoting Report of the Working Group to the Commission on Human Rights, art. 15, U.N. Doc E/CN.4/56)
(emphasis added).
35. For a discussion of the categorical approach to interpreting the free speech clause in the First
Amendment, see William van Alstyne, A Graphic Review of the Free Speech Clause, 70 CAL. L. REV. 107,
121–25 (1982) (noting that the category of “the freedom of speech” does not include perjury, obscenity,
defamation, fighting words, commercial fraud, criminal solicitation, etc.). See also Frederick Schauer,
Categories and the First Amendment: A Play in Three Acts, 34 VAND. L. REV. 265 (1981) (discussing “definitional-absolutist” theories of free speech).
36. For a discussion of “ad hoc balancing” versus categorical approaches, see Pierre J. Schlag, An
Attack on Categorical Approaches to Freedom of Speech, 30 UCLA L. REV. 671 (1983).
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lytism on the rights and freedoms of others.37 But, as we shall see, once this
step is taken then one is already engaged in some form of balancing or
limitations-type analysis either as between conflicting rights or as between
an asserted public interest and an individual right.
C. The Mind-Action Distinction and Limitations Under Article 18(3)
The third point is that under international human rights law the state can
impose valid limitations on the freedom to manifest religion or belief. Consider once again article 18(3) of the ICCPR:
Freedom to manifest one’s religion or beliefs may be subject only to
such limitations as are prescribed by law and are necessary to protect
public safety, order, health, or morals or the fundamental rights and
freedoms of others.38
In order to understand the function of article 18(3), we need to return to
the distinction made previously between the “private” and the “public”
dimensions of freedom of religion or belief. This is sometimes referred to as
the distinction between the forum internum and the forum externum, the former
encompassing the right to “have or adopt” a religion or belief, the latter the
right to “manifest” that religion or belief.39 The forum internum is considered
to be absolutely protected from interference by the law, i.e., it is nonderogable and not subject to limitation by the state. This is further reflected in
article 18(2), which provides that no person “shall be subject to coercion
which would impair his freedom to have or adopt a religion or belief of his
choice.”40 The state, for example, is absolutely prohibited from proscribing
37. Recall that article 18(2) of the ICCPR provides that “[n]o one shall be subject to coercion which
would impair his freedom to have or adopt a religion or belief of his choice.” ICCPR, supra note 10, art.
18(2). To the extent that proselytism is held to constitute coercion, article 18(2) can thus be read as itself
limiting the scope of the freedom to manifest religion or belief in article 18(1). Conversely, to the extent
that proscribing proselytism is itself a form of coercion (that is, by impairing the freedom to have or
adopt a religion one of whose central tenets includes proselytism), article 18(2) can also be read as a
limitation on the limitations provisions in article 18(3). The point here is that without a material conception of what constitutes “coercion” or “harm,” the bundle of rights claims and limitations in article
18 is indeterminate and unable, on its own terms, to indicate the appropriate limits to the freedom to
manifest religion or belief. This raises the related question of whether the “coercion” in article 18(2)
covers only state action or whether it includes coercive acts by private actors as well. The text is not clear
on this point, although international and regional human rights instruments have generally been interpreted to apply beyond state authority. See, e.g., Velasquez Rodriguez, SER. C, NO. 4, 9 HUM. RTS. L. J.
212 (1988) (Int.-Am. Ct. H.R.). As indicated above, the state then faces a potential conflict of duties: on
the one hand, the duty to prevent private acts of harm or coercion; and on the other, in doing so the duty
not to violate the individual freedom to manifest religion or fundamental beliefs.
38. The corresponding provision in the European Convention is article 9(2). In U.S. First Amendment
jurisprudence, the state’s right to limit the manifestation of religious belief was recognized as early as
1878 in Reynolds v. United States, 98 U.S. 145 (1878) (rejecting the claim that religious beliefs necessitated, and therefore excused, religious practices that run counter to neutrally enforced criminal laws).
39. On the distinction between the forum internum and the forum externum, see BAHIYYIH G. TAHZIB,
FREEDOM OF RELIGION OR BELIEF: ENSURING EFFECTIVE INTERNATIONAL LEGAL PROTECTION 26 (1996).
40. ICCPR, supra note 10, art. 18(2).
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membership of certain religions under law, from coercing individuals to reveal their religion without consent, or from using threats, physical force, or
penal sanctions to compel individuals to adhere to or recant certain religious
beliefs.41
Understood in this way, the forum internum is a narrower concept than the
commonly understood meaning of the term “private sphere.” It encompasses the internal sphere of personal thought, conscience, or belief and not
those external spheres, even if nonstate and therefore technically “private,”
such as places of worship, the school, or the family, where religious belief
may be communicated or acted upon. The purported distinction is thus between thought or conscience on the one hand and action related to belief on
the other. The dichotomy between external pressure inducing a forcible
change in inner belief and external pressure obliging action that runs counter
to inner belief is not, however, so easily drawn. There is, unsurprisingly, a
rich jurisprudence at both the domestic and international levels that deals
with this fragile divide.42 Consider, as one recent example, the case of Buscarini v. San Marino, in which newly elected members of the parliament of
San Marino were required, on pain of losing their parliamentary seats, to
take a compulsory oath on the Gospels.43 In challenging this obligation
under article 9 of the ECHR, the applicants argued that their right to freedom of religion and conscience had been infringed. The Court held that the
obligation to take the oath in this form was a violation of article 9 as it
“required them to swear allegiance to a particular religion.” However,
rather than viewing this as a violation of the nonderogable forum internum
under article 9(1), on the grounds that the state was compelling individuals
either to recant their religion or belief or to adhere to another religion or
belief, the Court avoided this question altogether and held that under the
41. Id. In Darby v. Sweden, App. No. 11581/85, 187 Eur. Ct. H.R. (ser. A) (1990), the European
Court of Human Rights held that article 9(1) “protects everyone from being compelled to be involved in
religious activities against his will.” See id., annex to the decision of the Court, ¶ 51.
42. The most well-known First Amendment case is West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1943), where the U.S. Supreme Court held that the Board of Education’s resolution
making the flag salute a regular part of the school program and requiring all teachers and pupils to
participate was unconstitutional. While avoiding the question of whether nonconformist beliefs would
exempt individuals from the duty to salute, and deciding the case instead on the basis of unjustified
interference with freedom of expression, Justice Jackson stated:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty,
can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith therein.
Id. at 642. For a general discussion of cases involving the belief-action distinction in the jurisprudence of
the European Court of Human Rights, see Peter Danchin and Lisa Forman, The Evolving Jurisprudence of
the European Court of Human Rights and the Protection of Religious Minorities, in PROTECTING THE HUMAN
RIGHTS OF RELIGIOUS MINORITIES IN EASTERN EUROPE 192 (Peter G. Danchin and Elizabeth A. Cole
eds., 2002) [hereinafter PROTECTING THE HUMAN RIGHTS OF RELIGIOUS MINORITIES]; see also CAROLYN
EVANS, FREEDOM OF RELIGION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS 74–79 (2001)
(discussing the difficulties of the internal-external dichotomy in ECHR case law).
43. Buscarini v. San Marino, App. No. 24645/94 (1999) (unreported).
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limitations clause in article 9(2), the oath was an unnecessary limitation on
the manifestation of religion or belief in a democractic society.44
If we apply the mind-action distinction to our imagined law proscribing
proselytism, we can again see the difficulty. On one reading, the law infringes on the forum internum by imposing a penal sanction compelling adherents of some religious traditions—if not expressly then by its effect—to
recant or disavow certain central tenets of their faith.45 Conversely, the law
can be read not as impinging on the forum internum at all—adherents remain
free to believe that proselytism is a religious duty—but merely limiting the
extent to which religious beliefs can be acted upon in relation to the rights
and freedoms of others. Of course, one can imagine varying degrees of legal
restriction on proselytizing activities ranging from complete prohibition on
the one hand to restrictions in only the most extreme circumstances of harm
or coercion (however these concepts are understood) on the other.
On whatever basis such limits are drawn, and however unstable this distinction is in its application,46 the general point is that international human
rights law imagines an internal or personal sphere of “belief” that is in some
sense pre- or extra-social, political, and legal and hence absolutely “inviolable” or “sovereign.”47 David Kennedy has observed in discussing the historical disentanglement of law from religion: “Religion was to be respected,
even honored, in its own sphere—the domain of private commitment and
spiritual meaning.”48 In the conditions of the modern state, religion is thus
imagined as having two dimensions: insofar as religion involves actual manifestations of belief and actions in the world, it is subject to regulation and
control by the public (political and legal) spheres; insofar as it involves matters of conscience, it is imagined as occupying—in a state of inviolable freedom—the private sphere of personal belief, sentiment, and identity.49
44. The Court stated that it would be contradictory to make the exercise of a mandate intended to
represent different views of society within Parliament subject to a prior declaration of commitment to a
particular set of beliefs; consequently, the Court unanimously held that the limitation could not be
regarded as “necessary in a democratic society” and was in violation of article 9(2). For a full discussion
of this case, see Danchin & Forman, supra note 42, 212–13.
45. As recognized in Wisconsin v. Yoder, at some point burdening external manifestations of belief will
have harmful implications for the internal realm. 406 U.S. 203, 216 (1972) (noting that religion for the
Amish was not “simply a matter of theocratic belief” but a “deep religious conviction” that pervaded
their whole way of life, interference in which would have the inevitable consequence of interfering with
their belief).
46. The assumption that action and belief can be clearly distinguished has been questioned by many
scholars. See, e.g., J.E.S. FAWCETT, THE APPLICATION OF THE EUROPEAN CONVENTION ON HUMAN
RIGHTS 238–39 (1987); Gabriel Moens, The Action-Belief Dichotomy and Freedom of Religion, 12 SYDNEY L.
REV. 195 (1989); Donna Sullivan, Advancing the Freedom of Religion or Belief Through the UN Declaration on
the Elimination of Religious Intolerance and Discrimination, 82 AM. J. INT’L L. 487, 500–10 (1988).
47. This is also a dominant feature of U.S. First Amendment jurisprudence. See, e.g., Cantwell v.
Connecticut, 310 U.S. 296, 303–04 (1940) (“Thus the Amendment embraces two concepts—freedom to
believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.”).
48. David Kennedy, Losing Faith in the Secular: Law, Religion and the Culture of International Governance,
in RELIGION AND INTERNATIONAL LAW 309, 313 (Mark W. Janis & Carolyn Evans eds., 1999).
49. See, e.g., TALAL ASAD, GENEALOGIES OF RELIGION: DISCIPLINE AND REASONS OF POWER IN CHRISTIANITY AND ISLAM 205 (1993) (“The constitution of the modern state required the forcible redefinition
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However this distinction is understood and calibrated in practice, the law
both constructs and reflects the idea of a legal subject possessing an inviolable inner realm of ideas or beliefs separate from one’s actions and “being in
the world,” whether in the “public” domain of law and politics or in the
“private” (but not “inner”) domain of temple, school, or family.
This sphere of individual, private conscience forms the protected “core”
of the human right to freedom of religion or belief. Its inviolability is both
unchallenged and unchallengeable, and rights discourse proceeds from this
basic claim to other related claims (but not the reverse). The justification for
such inviolability, however, remains obscure and unsettled. Different accounts of human rights point to different theoretical “foundations,” whether
grounded in ideas of natural law, human dignity, reason, agency, democracy,
etc. Some theories point to religion itself as a possible—or arguably, the
only—“foundation” of the human rights idea.50 But in a world that includes agnostics, atheists, and nonbelievers, such accounts are generally regarded as falling outside of the secular, modernist mainstream.
I will have more to say concerning the relationship between rights
foundationalism and religious freedom in Part V. At this stage, I wish
merely to observe that there is a specific conception of the mind-action dichotomy that underlies the international human right to religious freedom.
This conception, however justified—and that, as I say, remains a matter of
great contestation—generates the various dichotomies that characterize
rights discourse in the area of freedom of religion or belief: the idea of a
clearly ascertainable and stable separation between private conscience and
public reason; the idea of a forum internum and a forum externum; the idea of
private and public spheres. These dichotomies, or “Cartesian dualisms” as
they are sometimes termed, are vulnerable, however, to critiques that seek to
challenge the historical particularity and ethnocentrism of liberal rights regimes on the grounds that “some privileged understanding of rationality is
falsely legitimated by claiming . . . an unwarranted universality.”51 If, in
of religion as belief, and of religious belief, sentiment, and identity as personal matters that belong to the
newly emerging space of private (as opposed to public) life.”).
50. See, e.g., MICHAEL J. PERRY, THE IDEA OF HUMAN RIGHTS: FOUR INQUIRIES 11–42 (1998) (ch. 1,
“Is the Idea of Human Rights Ineliminably Religious?”). In considering whether the conviction that
“every human being is sacred” can have a secular justification or whether it is inescapably religious,
Perry concludes:
There is no intelligible (much less persuasive) secular version of the conviction that every
human being is sacred; the only intelligible versions are religious. (To say that the only intelligible versions of the conviction are religious is not to say that any religious version is persuasive or even plausible.) The conviction that every human being is sacred is, in my view,
inescapably religious—and the idea of human rights is, therefore, ineliminably religious.
Id. at 11–12.
51. See, e.g., RICHARD J. BERNSTEIN, BEYOND OBJECTIVISM AND RELATIVISM: SCIENCE, HERMENEUTICS AND PRAXIS 19 (1983) (discussing the “Cartesian anxiety” which derives from Descartes’ “dualism”
in Western philosophy and the quest for secure and stable “foundations” for knowledge—some fixed,
ultimate constraints that can secure our thought and action).
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other words, the mind-action dichotomy itself were shown to be only one
possible conception among others for understanding our knowledge of the
world, or even shown to be an illusion, the universality of this assumption,
and the various theoretical distinctions that flow from it, would require substantial reconsideration.
Let us proceed, however, on the assumption that the forum internum is in
the sense indicated “inviolable.” It then becomes clear why the forum externum is correspondingly regarded as being subject to valid limitations on
the grounds set out in article 18(3), i.e., as “prescribed by law” and “necessary to protect public safety, order, health or morals or the fundamental
rights and freedom of others.”52 Given the need to ensure that limitations
do not eviscerate the right itself, the Human Rights Committee has stated
that the limitations in article 18(3) should be “strictly interpreted.”53 Likewise, the European Court of Human Rights (“European Court”) has recognized that restrictions imposed on the freedom to manifest religion or belief
“call for very strict scrutiny,” because such restrictions have a direct impact
on “the need to secure true religious pluralism, an inherent feature of the
notion of a democratic society.”54 Thus, it is recognized that there are—at
least in theory—specific limits on the state’s ability to limit manifestations
of religion or belief.
What then does human rights jurisprudence regard as constituting such
limits? In the first instance, limitations must be “prescribed by law.”55 This
requirement protects against a variety of circumstances related to abuse of
the legal process, including limitations that are the result of arbitrary decisionmaking, decisions taken not in compliance with existing law, or pursuant to rules that are not stated with sufficient clarity or specificity (a) to
allow persons to know with reasonable certainty the legal consequences of
their actions and (b) to allow for application in a nondiscriminatory manner.56 Second, limitations must be in furtherance of one of the grounds specifically listed in international instruments.57 Limitations are not permitted
on other, unlisted grounds such as national security.58 Third, limitations
must not be applied in such a manner as would vitiate the right to freedom
of religion for a particular group.59 This result may depend upon the centrality of the limited manifestation to a particular religion, or upon the cumula-
52. See General Comment No. 22, supra note 22, ¶ 3.
53. Id. ¶ 8.
54. Manoussakis v. Greece, App. No. 18748/91, 23 Eur. H.R. Rep. 387, 407 (1997).
55. ICCPR, supra note 10, art. 18(3); ECHR, supra note 10, art. 9(2); American Convention, supra
note 23, art. 12(2).
56. See Krishnaswami Study, supra note 14, at 17–18; Kokkinakis v. Greece, App. No. 14307/88, 260
Eur. Ct. H.R. (ser. A) ¶ 40 (1993) (problem with vague laws).
57. See ICCPR, supra note 10, art. 18(3); ECHR, supra note 10, art. 9(2); American Convention, supra
note 23, art. 12(3); Declaration on Religious Intolerance, supra note 10, art. 1(3).
58. See General Comment No. 22, supra note 22, ¶ 8.
59. See id.
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tive effects of a number of limitations.60 Fourth, limitations cannot be
“imposed in a discriminatory manner.”61 Fifth, limitations cannot be based
on a state’s determination of the legitimacy of the beliefs that are sought to
be manifested.62 And sixth, in the words of the Human Rights Committee,
“limitations may be applied only for those purposes for which they were
prescribed and must be directly related and proportionate to the specific
need on which they are predicated.”63
How then would articles 18(2) and (3) apply to our imagined law proscribing proselytism? As we have already seen, article 18(2) is open to conflicting interpretations. On the one hand, a proselytizer may argue that the
law coercively impairs her freedom to follow the central tenets of her most
deeply held religious beliefs. On the other hand, a person subject to proselytism—assuming that she is an unwilling listener whose consent to the conversation is, in some respect, compromised (a point to which we shall return
shortly)—may argue that without the protection of such a law she is subject
to a form of coercion and harm that interferes with the peaceful enjoyment
of her freedom of religion (which may include religious or non-religious
beliefs such as atheism or agnosticism). In other words, both the proselytizer
and the target of proselytism can advance rights claims based on freedom of
religion or beliefs that are in conflict with each other. The consequence is
that, in imposing any limitation under article 18(3), the state will restrict
the freedom of religion of either the proselytizer or the target of proselytism.
While our imagined law will burden the free exercise of religion of proselytizing faiths, its absence may in certain circumstances burden the peaceful
enjoyment of religious or fundamental beliefs of non-proselytizing faiths or
groups—assuming, of course, that proselytizing groups are present and active in the state.
How then is the state to draw the appropriate limitation? Here, again, the
determination of the validity of our imagined law is open to a number of
possible claims of limitation by the state. The law can be said to have been
properly prescribed through the democratic process and can arguably be jus60. See Krishnaswami Study, supra note 14, at 20 (“[A]ccount must be taken of the fact that even
though each of the several limitations taken by itself may be considered permissible, the whole complex
of limitations when taken together may be such as to render the exercise of the right nugatory.”)
61. For an example of this type of situation, see Grandrath v. Federal Republic of Germany, App. No.
2299/64, 10 Y.B. Eur. Conv. on H.R. 626, 678 (1967) (Comm. Ministers) (limitation on right to be free
from forced labor, i.e., military conscription, was applied to Jehovah’s Witness ministers but not to
Lutheran ministers and Catholic priests who were granted conscientious-objector status).
62. “The right to freedom of religion as guaranteed under the [European] Convention excludes any
discretion on the part of the State to determine whether religious beliefs or the means used to express
such beliefs are legitimate.” Manoussakis v. Greece, App. No. 18748/91, 23 Eur. H.R. Rep. 387, 408
(1997). This limit should presumably be read in accordance with the ECHR and the ICCPR. ECHR,
supra note 10, art. 17 (“Nothing in [this Convention] may be interpreted as implying for any State,
group or person any right to engage in any activity or perform any act aimed at the destruction of any of
the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in
[this Convention].”). The ICCPR contains virtually identical language. ICCPR, supra note 10, art. 5(1).
63. General Comment No. 22, supra note 22, ¶ 8.
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tified on a number of the grounds listed in article 18(3), like the protection
of public order, public morals, or the fundamental rights and freedoms of
others. The state may argue, for example, that the law is required to prevent
public disorder on the grounds that the proselytizing activities of certain
religious groups are causing or are likely to cause threats and violence. There
may be a history of such violence in the state or such consequences may
appear likely under prevailing social conditions. More controversially, the
state may argue—as the Greek government did in the case of Manoussakis v.
Greece—that any conception of the protection of public order must take into
account the fact that an overwhelming proportion of the population is of the
same religion (in this case, Greek Orthodox) and that the dominant or national religion has played a central role in the “national conscience” and
patriotic history of the nation.64 In such circumstances, the activities of a
certain religious community or group of religious communities may
threaten public order simply by virtue of being visible, different, or successful. While this fact alone may not permit the state to suppress such manifestations of religion or belief as a matter of public policy, it may—so the
argument goes—allow the state to impose more narrow, “reasonable” limitations on manifestations of the kind embodied in our envisaged law in order to prevent public disorder.65
Before proceeding further, it is important to note that, quite apart from
the question of public order, a limitation of this kind gives rise to a number
of other related difficulties. It may, for example, result in claims of differential treatment by restricting the activities of only certain religious groups.66
This may be the case even if the law (as is the case with our imagined law) is
stated to apply to all persons and religious groups. Questions of equal treatment, in turn, call into question the historical relationship between religion
and the state with each state’s particular religious identity and constitu64. Manoussakis, 23 Eur. H.R. Rep. at 404–05.
65. See, e.g., Karl Josef Partsch, Freedom of Conscience and Expression, and Political Freedoms, in THE INTERNATIONAL BILL OF RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 209, 212-13 (Louis Henkin, ed., 1981) (“[L]imitations on freedom to manifest one’s religion cannot be imposed to protect ordre
public with its general connotations of national public policy, but only where necessary to protect public
order narrowly construed, i.e., to prevent public disorder. A state whose public policy is atheism, for
example, cannot invoke Article 18(3) to suppress manifestations of religion or beliefs.”).
66. Such claims can arise where states have laws protecting the dominant religious group by restricting the activities of minority religious groups. The Malaysian government, for example, has rejected
assertions that its laws prohibiting proselytism directed at Muslims impact upon the right to religious
freedom of non-Muslims.
For the protection of its special position as the religion of the Federation, article 11(4) of the
Constitution provides that State law (and federal law in respect of the federal territories) may
control or restrict the propagation of non-Islamic religions among Muslims . . . . Such being
the limited scope of the enactments, they could not in any way diminish the enjoyment by
non-Muslims of freedom of thought, conscience and religion.
U.N. Econ. & Soc. Council, Comm’n on Hum. Rts., Implementation of the Declaration on the Elimination of
All Forms of Intolerance and of Discrimination Based on Religion or Belief, ¶ 58, U.N. Doc. E/CN.4/1990/46
(Jan. 22, 1990) (prepared by Angelo Vidal d’Almeida Ribeiro).
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tional matrix giving rise to its own complex patchwork of compromises and
dispensations.67 I wish to put such questions aside for the moment and will
return to them in Part IV below.
Similar arguments to those regarding “public order” can be made by the
state in relation to the need to protect “public morals,” especially in relation
to small or unpopular religious groups such as Falun Gong, Hare Krishnas,
or Scientologists.68 It is generally recognized that limitations predicated on
the need to protect public morals “must be based on principles not deriving
exclusively from a single tradition.”69 Beyond that, however, the exact limits of the concept of “public morals” remains elusive and in practice has
been worked out by each state within its margin of appreciation in accordance with its own political, historical, and societal narratives and
circumstances.70
III.
CONFLICTING CLAIMS: THE DIALECTICS
OF
SUBJECT
AND
OBJECT
Let us turn now to consider limitations made in furtherance of the protection of the “fundamental rights and freedoms of others.” It is only on this
question that we begin to appreciate the extent of the indeterminacy of the
various rights claims that may be advanced under article 18. As a preliminary matter, it is useful to distinguish between the possible rights claims of
the proselytizer on the one hand and those of the target of proselytism on
the other. I shall leave for later discussion of the broader question of the
interests and identity of the state—that is, those overriding interests concerning society or the nation in general that are separate from, but nevertheless linked to, the interest in protecting the rights and freedoms of others.71
67. For example, “[f]rom the perspective of the Malaysian government, the unity and stability of the
multi-ethnic, multi-religious State of Malaysia is dependent upon the preservation and strengthening of
the Islamic character of the State and Muslim institutions.” Stahnke, supra note 24, at 308.
68. See, e.g., David Little, Religious Minorities and Religious Freedom: An Overview, in PROTECTING THE
HUMAN RIGHTS OF RELIGIOUS MINORITIES, supra note 42, at 33, 42–46 (discussing prejudicial treatment
by states in Europe toward various religious minorities that have been designated as “sects” or “dangerous cults”).
69. General Comment 22, supra note 22, ¶ 8.
70. The jurisprudence of the European Court of Human Rights indicates that it is impossible to find
a uniform European conception of morals, thus requiring a “margin of appreciation” left to the states.
See, e.g., Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) (1976) (finding in relation to a
restriction on freedom of expression on the grounds of “obscenity” that it was not possible to find a
uniform European concept of morals in the domestic law of the various European states); see also Alexandre Charles Kiss, Permissible Limitations on Rights, in THE INTERNATIONAL BILL OF HUMAN RIGHTS, supra
note 65, at 290, 303–04.
71. “These include the protection of a particular dominant religious tradition or dominant political
ideology, the preservation of public order, and the regulation of the religious ‘marketplace’ in order to
ensure fairness and to encourage informed religious choices.” Stahnke, supra note 24, at 305.
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A. The Rights of the Proselytizer
As we have already seen, the proselytizer’s strongest claim is one of free
exercise—the freedom to manifest her religion or belief under article 18(1).
She also has a claim, however, to freedom of expression under article 19 of
the ICCPR. Approached in this way, some different considerations and results may be reached, especially where claims to manifest religion are conjoined with claims to freedom of speech.72 Recall, for example, the U.S.
Supreme Court’s decision in West Virginia State Board of Education v. Barnette.
This case involved Jehovah’s Witnesses who were conscientiously opposed to
saluting the flag. The Court held that a resolution of the Board of Education
making the flag salute a regular part of the school program and requiring all
teachers and pupils to participate was unconstitutional. Justice Jackson, in
his opinion for the Court, noted that the flag salute in connection with the
pledge of allegiance required “affirmation of a belief and an attitude of
mind.”73 In thus deciding the case on the basis of an unjustified interference
with freedom of expression, he was able to avoid the question of whether
nonconformist religious beliefs would exempt individuals from the duty to
salute (and was thus able to avoid confronting the belief-action distinction
discussed previously).74
While this approach may be more suggestive of the weight that American
constitutional jurisprudence places on free speech—what the Supreme Court
in Palko v. Connecticut referred to as “the matrix, the indispensable condition,
of nearly every other form of [freedom]”75—it also illustrates the intertwined nature of the relationship between freedom of religion or belief and
other fundamental rights such as freedom of expression and association.76
72. See, e.g., Employment Div. v. Smith, 494 U.S. 872, 881 (1990) (dicta stating that the reason that
some prior decisions held that the First Amendment bars the application of laws even of general applicability is due to the fact that these cases involved “the Free Exercise Clause in conjunction with other
constitutional protections, such as freedom of speech or of the press”). Stahnke has noted that framing
proselytism in terms of freedom of expression rather than freedom of religion has some practical ramifications. Where the proselytizer seeks, for example, to have another reject, rather than adopt, religious
beliefs (i.e., because the proselytizer does not necessarily have religious beliefs of his own), this cannot be
easily classified as a “manifestation” of religion or belief. Further, viewing proselytism as a form of
expression avoids the need to confront the question of whether the beliefs being asserted are “religious”
or “fundamental,” or whether proselytism falls within the protected “category” of religious freedom. See
Stahnke, supra note 24, at 278–79.
73. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633 (1943).
74. In holding that the flag salute was a form of utterance, Justice Jackson stated, “If there is any
fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall
be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by
word or act their faith therein.” Id. at 642. The point here is that if no one has a duty to salute because
that violates freedom of expression, it logically follows that those with nonconformist beliefs cannot be
required to salute. The parents and children with such religious beliefs in this way fall into a broader
protected category.
75. Palko v. Connecticut, 302 U.S. 319, 327 (1937).
76. See supra note 14. The few cases that have come before the European Court and the Human Rights
Committee pertaining to religious freedom almost invariably rely on one, or a number, of these ancillary
rights stated in the alternative. A review of these cases reveals that the treaty bodies prefer to decide cases
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Given that each rights claim may be supported by different principles and
interests, this becomes a particularly important and complicating factor
when claims of right come into conflict with each other. That is to say, the
question of proselytism gives rise not only to conflicts internal to the different aspects of the right to freedom of religion or belief itself, but also to
conflicts as between religious freedom and other rights. I shall return to this
question below.
Before proceeding, however, I wish to make one further observation regarding the relationship between religious freedom and free speech. We
have seen that while human rights law regards the holding of religious beliefs to be a matter of inviolable individual freedom, the attempt to persuade
others of those beliefs is subject to certain (as yet unspecified) restrictions.
We should note, however, that it would be preposterous to invoke a similar
notion in relation to political speech: for example, to say that while you can
hold political views, any attempt to persuade others of such views is subject
to certain limitations. The logic of free speech is that “debate on public
issues should be uninhibited, robust and wide-open,”77 and this idea makes
little sense unless individuals can aggressively present their views to
others—even to those for whom they are unwelcome or upsetting. This idea
was powerfully expressed during the Danish cartoons affair, especially in the
United States where, as Robert Post has noted, the First Amendment has
been held to protect all religious polemic from legal sanction—even expression that aims “deliberately and provocatively to assault the religious sensibilities of the pious.”78
The invocation by proselytizers of the right to freedom of expression creates tremendous pressure on the targets of proselytism to explain why religious speech should be treated differently from political speech. It is to this
issue—and the rights of the target of proselytism—that we must now turn.
B. The Rights of the Target of Proselytism
In considering the rights and interests of the target of proselytism—that
is, the “fundamental rights and freedoms of others” that the state must take
into account in limiting the freedom to manifest religion or the freedom of
expression—we see two sets of potential claims that are internally in tension
with each other. On the one hand, the target of proselytism has the freedom
to change her religion and the freedom to receive information. On the other
on the basis of rights other than what they perceive to be the more “sensitive” right to freedom of
religion and belief in article 18.
77. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
78. Robert Post, Religion and Freedom of Speech: Portraits of Muhammad, 14 CONSTELLATIONS 72, 73
(2007). Post refers to the judgment of the Supreme Court in Cantwell v. Connecticut as authority for this
proposition. Id. at 73 n.7. He does note, however, that the First Amendment is exceptional in this
respect and that in Europe “there is a long history of regulating blasphemy, and as a consequence the
question of subjecting the cartoons to legal sanction is very much alive.” Id. For further discussion on
this point, see infra Part III.B.3.
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hand, she has the right to “have or adopt” a religion and to be free from
injury or offense to her religious feelings. We need to consider each of these
bundles of claims in turn.
1. The Freedom to Change Religion or Belief
Similar to the question of whether the freedom to manifest religion or
belief includes the freedom to proselytize, the question of whether freedom
of religion encompasses the freedom to change religion has been a controversial question in international law. Even today there remain marked points of
disagreement among states as a matter of practice.79 While the freedom to
change one’s religion or belief is entrenched in positive human rights standards, its acceptance by many states remains controversial.80 In many Muslim states, for example, it is considered a central tenet of Islam that there
may be no coercion in matters of religion. Certain contemporary interpretations of Islam, however, do not accept the right of a person to abandon their
religion or to convert to another, and it is a capital offence (apostasy) under
Islamic law in some countries for a Muslim to repudiate his or her faith in
Islam.81 Accordingly, many Islamic states do not formally accept the
Human Rights Committee’s interpretation of the right to “have or adopt” a
religion as meaning the right to replace one’s current religion or to adopt
atheistic views.82 Due to the fact that apostasy—the abandonment or renunciation of one’s religious beliefs—is treated as an offense, it naturally follows
that proselytism—the attempt to change another’s beliefs—is also prohibited (at least when directed at Muslims by others, proselytism directed at
non-Muslims other than dhimmis being regarded as a religious duty of Muslims).83 The result is that today, a number of Islamic countries stand outside
of international human rights norms on this question.84
79. See Evans, supra note 34, at 238.
80. See J. A. Walkate, The Right of Everyone to Change His Religion or Belief: Some Observations, 30 NETH.
INT’L L. REV. 146 (1983).
81. See Abdullahi Ahmed An-Na’im, The Islamic Law of Apostasy and its Modern Applicability: A Case
from the Sudan, 16 RELIGION 197 (1986). Various Islamic states have laws prohibiting apostasy from
Islam. These laws are purported to stem from the shari’a, and the approach of that body of law to the
commitment of those that have become, or have been born as, Muslims. See David Little et al., Human
Rights and the World’s Religions: Christianity, Islam, and Religious Liberty, in RELIGIOUS DIVERSITY AND
HUMAN RIGHTS 213, 215 (Irene Bloom et al. eds., 1996). In the Declaration on the Rights and Care of
the Child in Islam of the Islamic Conference, this prohibition on apostasy is noted in article 8, which
addresses the right to education: “While Islam guarantees Man’s freedom to voluntarily adopt Islam
without compulsion, it prohibits apostasy of a Muslim afterwards, in view of the fact that Islam is the
Seal of Religions and, therefore, the Islamic society is committed to ensuring that the sons of Muslims
preserve their Islamic nature and Creed and to protecting them against attempts to force them to relinquish their religion.” Declaration on the Rights and Care of the Child in Islam, 269, 273 art. 8, U.N. Doc. A/
50/85-S/1995/152, Annex I: Res. 16/7-C (IS) (Feb. 23, 1995).
82. See General Comment No. 22, supra note 22, ¶ 5.
83. See An-Na’im, Islamic Foundations of Religious Human Rights, supra note 26, at 352–53.
84. The enforcement of apostasy rules in Islamic countries may vary, but in recent years at least a few
states have sought to invigorate them and to defend them as consistent with international human rights
standards. For example, Mauritania has a provision in its penal code that imposes a death sentence for
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This problem has been further exacerbated by the progressive dilution of
the language in the International Bill of Rights and subsequent instruments. Article 18 of the Universal Declaration of Human Rights speaks
explicitly of the right “to change” one’s religion, whereas the corresponding
article in the ICCPR speaks only of the right “to have or adopt” a particular
religion or belief.85 While this change in wording does not deny the right to
change religions, it does signal the reluctance of many states to squarely
confront the implicit consequences of this right.86 Indeed, as time has
elapsed, “reaching a consensus on this point seems to be even more
elusive.”87
Of course, it does not necessarily follow that the freedom to change one’s
religion supports the right of another to proselytize. The Malaysian government, for example, has argued that its laws proscribing proselytism of Muslims by non-Muslims do not restrict the freedom of Muslims to change their
religion:
If any Muslim desires to seek knowledge about another religion or even
to possess another religion of his own free will and on his own initiative, [laws prohibiting proselytism] are not capable of deterring him.
Those laws are merely aimed at protecting Muslims from being subjected to attempts to convert them to another religion.88
In contrast to the Malaysian position, the European Court has stated in
the Kokkinakis case that the freedom to change religion would be a “dead
letter” if the freedom to manifest religion did not include “the right to try
“any Muslim who abandons his faith and does not repent within three days.” U.N. Econ. & Soc. Council,
Comm’n on Hum. Rts., Implementation of the Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief, ¶ 60, U.N. Doc. E/CN.4/1990/46 (Jan. 22, 1990) (prepared by
Angelo Vidal d’Almeida Ribeiro). The Mauritanian government has defended this offense and its penalty
as a proper limitation (in furtherance of public order and morality) on the right to freedom of religion.
Note also here the position of non-Muslims or dhimmis in some Islamic states. Under the shari’a, these
minority groups may have a degree of security of the person, freedom to practice their religion, and a
degree of internal community autonomy, but they are often not allowed to participate in the public
affairs of the Islamic state.
85. See Universal Declaration of Human Rights, supra note 23, art. 18; American Convention, supra
note 23, art. 12(1). The ICCPR adopted a related, but different, formulation: “[The right to freedom of
religion] shall include freedom to have or to adopt a religion or belief of his choice . . . . No one shall be
subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”
ICCPR, supra note 10, arts. 18(1) & (2) (emphasis added). Note that the U.N. Declaration on Religious
Intolerance, supra note 10, art. 1(2), adopted the same wording as article 18 of the ICCPR, but deleted
the important phrase “or to adopt.”
86. See Partsch, supra note 65, at 211. See also Natan Lerner, Proselytism, Change of Religion and International Human Rights, 12 EMORY INT’L. L. REV. 477, 507–08 (1998).
87. See Stahnke, supra note 24, at 280 n.81. It can also be seen that while the global instruments have
taken into account the opposition of certain Islamic states to the right to change religion, the European
Convention on Human Rights (designed for a narrower national, cultural, and religious region) does not.
88. U.N. Econ. & Soc. Council, Comm’n on Hum. Rts., Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, ¶ 52, U.N. Doc. E/CN.4/
1989/44 (Dec. 30, 1988) (prepared by Angelo Vidal d’Almeida Ribeiro).
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and convince one’s neighbour.”89 This argument is further reinforced by the
freedom of the target of proselytism to receive information. Article 19(2) of
the ICCPR provides that the right to freedom of expression “shall include
freedom to seek [and] receive . . . information and ideas of all kinds.”90 As
Kent Greenawalt has suggested, restrictions on proselytism may not only
violate the rights to free exercise and free speech of proselytizers, but also
unduly restrict the right of willing listeners to receive information.91 Again,
however, it does not necessarily follow that the right to receive information
includes the right to be confronted with all possible forms of unsolicited
views, including those that the state deems important to restrict either to
protect the “fundamental rights and freedoms of others” from specific harms
or to serve some other compelling state interest.
2. The Freedom to Have or Maintain a Religion
Exerting pressure in the opposite direction are the freedoms of the target
of proselytism to “have or adopt” a religion and to be free from “injury to
religious feelings.” We must consider each claim in turn. In relation to the
first—the freedom to “have” a religion—the question here is the extent to
which this includes a right to the peaceful enjoyment of that freedom (i.e.,
either to maintain one’s religion or to change one’s religion without being
subject to proselytism) such that the state must act to limit the freedom of
others to proselytize. This was the question that confronted the European
Court of Human Rights in the seminal case of Kokkinakis v. Greece.
a. Kokkinakis v. Greece
The Kokkinakis case involved the prosecution by Greece of a Jehovah’s
Witness for proselytism directed toward a member of the dominant religion,
Christian Eastern Orthodoxy. The Greek law at issue proscribing proselytism was virtually the same as our imagined law.92 In the end, the Court
decided the case on narrow factual grounds and declined to confront the
central normative question at issue: when and on what basis does the freedom of religion or belief protected under article 9 preclude member states
from criminalizing attempts to induce somebody to change his or her relig89. Kokkinakis v. Greece, App. No. 14307/88, 260 Eur. Ct. H.R. (ser. A) ¶ 31 (1993).
90. ICCPR, supra note 10, art. 19(2); see also Otto Preminger Inst. v. Austria, App. No. 13470/87,
295 Eur. Ct. H.R. (ser. A) 6, 20 (1994) (noting that the right to “take cognizance of certain views is
implied in the right to impart those views”).
91. See Kent Greenawalt, Title VII and Religious Liberty, 33 LOY. U. CHI. L.J. 1, 51 (2001) (discussing
the issue of religious expression in the workplace between employers and employees).
92. Section 2 of Law No. 1672/1939 defined “proselytism” as:
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Any direct or indirect attempt to intrude on the religious beliefs of a person of a different
religious persuasion, with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent
means or by taking advantage of his inexperience, trust, need, low intellect or naı̈vety.
For a detailed discussion of the facts and a critique of the European Court’s decision in Kokkinakis, see
PROTECTING THE HUMAN RIGHTS OF RELIGIOUS MINORITIES, supra note 42, at 200–10.
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ion? The Court held that while Greece had a legitimate aim in criminalizing
proselytism in order to protect the rights and freedoms of others,93 a distinction must be drawn between “proper” and “improper” proselytism, the former corresponding to “true evangelism . . . [while] the latter represents a
corruption or deformation of it.”94 However, rather than deciding whether
the proselytism in the present case was “improper,” or further developing
relevant notions such as “coercion,” “impropriety,” or “duress,” the Court
held six to three, on factual grounds, that the Greek court’s reasoning as to
Kokkinakis’s liability under the law was not sufficiently precise and that
there had accordingly been a violation of article 9.95
Judge Martens, in joining the majority decision, was critical of the
Court’s unwillingness to address the central issue in the case. In adopting
what we might term a “naı̈ve liberal” approach,96 Judge Martens stressed
the importance of the freedom of thought, conscience, and religion of the
individual to human dignity and argued that article 9 is “absolute” and
leaves no room for interference by the state.97 On his view, it was not the
concern of the state whether someone wishes to change their religion, nor
whether someone attempts to induce another to change their religion. To
allow the state to interfere by making proselytism a criminal offense “would
not only run counter to the strict neutrality which the state is required to
maintain in this field but also create the danger of discrimination when
there is a dominant religion.”98
By contrast, one of the dissenting judges, Judge Valticos, argued that
proselytism constitutes the “rape of the beliefs of others” and held that the
93. Article 13 of the Greek Constitution of 1975 states that
1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and
political rights shall not depend on an individual’s religious beliefs.
2. There shall be freedom to practice any known religion; individuals shall be free to perform
their rites of worship without hindrance and under the protection of the law. The performance
of rites of worship must not prejudice public order or public morals. Proselytism is prohibited.
1975 Syntagma [SYN] [Constitution] 13 (Greece) (emphasis added).
The Greek Court of Cassation had earlier held that the law prohibiting proselytism was
fully compatible with [the Constitution’s recognition] of the inviolability of freedom of conscience in religious matters and provides for the freedom to practice any known religion, subject to a formal provision . . . prohibiting proselytism in that proselytism is forbidden in
general whatever the religion against which it is directed, including therefore the dominant
religion in Greece . . . the Christian Eastern Orthodox Church.
Kokkinakis, 260 Eur. Ct. H.R. ¶ 12.
94. Id. ¶ 48. The Court held that the criteria adopted by the Greek legislature in creating the law
against proselytism were reconcilable insofar as they were designed to punish only “improper”
proselytism.
95. Id.
96. See ANNA ELISABETTA GALEOTTI, TOLERATION AS RECOGNITION 118 (2002) (discussing “the naı̈ve liberal view [that] conceives of toleration as the principle according to which everyone should be free
to follow his or her ideals and style of life as long as no harm is done to anyone else”).
97. Kokkinakis, 260 Eur. Ct. H.R. ¶¶ 13–14.
98. Id. ¶ 15.
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freedom to manifest one’s religion did not include the right to attempt
“persistently to combat and alter the religion of others, [and] to influence
minds by active and often unreasonable propaganda.”99 For Judge Valticos,
the applicant was a “militant Jehovah’s Witness, a hardbitten adept of proselytism, a specialist in conversion,” while the Jehovah’s Witnesses as a
group were a “sect . . . involved [in] . . . systematic attempt[s] at conversion
and consequently an attack on the religious beliefs of others.”100
The difference in reasoning between Judges Martens and Valticos goes to
the heart of the dilemma addressed by this Article. On the one hand, the
reasoning of Judge Martens is both naı̈ve and unconvincing. By viewing the
case as a conflict between the personal autonomy (individual freedom of conscience and belief) of the proselytizer and a certain privileged conception of
the collective good as determined by the majority (i.e., adherents of Christian Eastern Orthodoxy), Judge Martens made two interrelated claims: (a)
that because the right to freedom of religion is “absolute,” making proselytism a criminal offence violates the “strict neutrality” of the state;101 and (b)
that therefore enforcing the majority’s conception of the good discriminates
against individuals who, in this case, are members of a minority religious
group.102
This reasoning is open to question. Judge Martens ignores the fact that
the case involves not only a conflict between an individual right and the
collective good, but also a conflict between two individual rights—the right
of the proselytizer to manifest her religion or belief and the right of the
target of proselytism to the peaceful enjoyment of her freedom of religion.
Of course, if the target of proselytism welcomes the speech of the proselytizer, then presumably no conflict arises. It is possible, however, to imagine
scenarios involving conflicts between the rights of willing listeners referred
to above and the right of the state to enact such anti-proselytism laws on the
basis of certain collective or public interests. I shall return to this question
below. But if we proceed on the assumption that the target of proselytism is
unwilling in some specified sense, then the Court is faced with a genuine
conflict of rights.103 If, for example, the Court were to uphold the law on the
basis that the state has a legitimate interest in protecting the rights of individuals to the peaceful enjoyment of their fundamental beliefs (whether religious or non-religious), this would require privileging the rights claims of
the targets of proselytism over those of proselytizers. Conversely, if the
Court were to find that the law infringed article 9 by unjustifiably restricting the freedom to manifest religion or belief, this would require privileging
the rights claims of proselytizers over those of targets of proselytism.
99. Id. ¶¶ 2, 8 (Valticos, J., dissenting).
100. Id. ¶¶ 9–10 (Valticos, J., dissenting).
101. Id. ¶¶ 14–17 (Martens, J., dissenting in part).
102. Id. ¶ 5 (Martens, J., dissenting in part).
103. Although I do not pursue the point further here, this could apply to political speech as well.
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Judge Martens’s proposal of relying on an absolute conception of individual freedom of conscience is incapable on its own of resolving this dilemma.
After all, whose claim of individual freedom is to be preferred—that of the
proselytizer or the target of proselytism—and how is either preference to be
reconciled with the “strict neutrality” of the state? In order to answer these
questions, Judge Martens cannot avoid the need for a substantive theory of
justice capable of explaining why one claim of right is normatively preferable to the other. I shall return to this point further below.
On the other hand, the reasoning of Judge Valticos is equally unconvincing. As several commentators have suggested in the wake of Kokkinakis,
there appears to be a bias in the jurisprudence of the Court under article 9
toward protecting traditional and established religions and a corresponding
insensitivity toward the rights of minority, nontraditional, or unpopular religious groups. Jeremy Gunn, for example, suggests that a summary review
of the Court’s jurisprudence reveals a consistent pattern of rejecting article 9
claims, and this includes a persistent denial of applications from religions
that can be classified as new, nontraditional, or minority, as well as a distinct pattern of institutional bias towards traditional religions.104 In this
way, those religions established within a state, either because they are an
official religion or have a large number of adherents, are more likely to have
their core doctrines recognized as manifestations of religious belief.105
This pattern is reflected in the reasoning of Judge Valticos which relies, if
not expressly then at least implicitly, upon a privileged conception of the
collective good—that of the established, majority, or dominant religion. As
in the case of Malaysia discussed previously, laws proscribing proselytism of
the dominant religious group are in this way viewed not as restricting the
freedom of believers to change their religion, but merely as protecting the
dominant religious group from being subjected to attempts to convert them
to another religion. While this can be framed in terms of an individual’s
right to the maintenance and peaceful enjoyment of her religion (thus raising the conflict-of-rights dilemma discussed above), at a deeper level the
rationale for the law derives from a certain perceived conception of the collective good of the state.
The shift in reasoning from claims of right to claims of the “collective
good” is, however, problematic for two reasons. First, it threatens to eviscer104. See T. Jeremy Gunn, Adjudicating Rights of Conscience Under the European Convention on Human
Rights, in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: LEGAL PERSPECTIVES, supra note 14, at
305, 311 n.28; see also Eyal Benvenisti, Margin of Appreciation, Consensus, and Universal Standards, 31
N.Y.U. J. INT’L L. & POL. 843, 850 (1999) (arguing that the European Court grants a wide margin of
appreciation to majority-dominated national institutions as opposed to “democratically challenged”
minorities).
105. Evans suggests that religions whose devotions take different forms—for example, sexual intercourse or refusal to pay taxes to a centralized system hostile to their beliefs—are more likely to have their
devotions excluded from the protection of article 9 as non-manifestations. See Evans, supra note 34, at
290–91.
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ate even a modest conception of the individual right to freedom of religion
or belief. If rights are able to be restricted to protect the role that a “dominant or national religion has played . . . in the ‘national conscience’ and
patriotic history of the nation,” then the notion of individual freedom is
vulnerable to far-reaching and potentially oppressive limitations in accordance with the perceived imperatives of the interests of the state. Second, it
privileges one collective good over another in a manner antithetical to the
basic human rights commitments to equality and nondiscrimination. Here
the collective good of the minority Jehovah’s Witnesses—for whom proselytism is a central tenet of their faith and way of life—is being restricted in
favor of the collective good of the majority Greek nation for whom Eastern
Orthodoxy is central to the identity of the Greek nation-state.
The court in Kokkinakis therefore faced not only the question of how to
resolve a series of conflicts between various individual rights, but also between different conceptions of the collective good. These difficulties become
particularly acute when the conceptions of the collective good (and the
rights claims deriving from them) are in fact incompatible or “incommensurable” —that is, no way can be found for the way of life of both the proselytizer and the proselytized to be fully respected consistent with the claims of
right at issue. Not allowing the state to criminalize proselytism will be
regarded as discriminatory by the majority group for whom both the purpose and effect of the law is to protect and ensure the flourishing and identity of the Greek state (the public sphere) as Christian Eastern Orthodox.
Allowing the state to criminalize proselytism, however, will be regarded as
discriminatory by minority groups for whom disseminating their faith is
central both to their religious convictions and to their future survival as
distinct religious groups. Judge Valticos recognizes the former danger but,
in considering the individual freedom of conscience of both proselytizer and
the proselytized primarily in terms of the collective good of the majority, he
fails to acknowledge the centrality of proselytism to the religious life (and
collective good) of the Jehovah’s Witnesses. His approach, in other words, is
insensitive to both individual freedom and minority rights. By contrast,
Judge Martens recognizes the latter danger but, consistent with the insensitivity of his reasoning to the collective dimensions of the rights claims at
issue, he fails to recognize that the right to freedom of religion also protects
certain collective goods (of both the majority and minority groups) and that
there may actually be no “strictly neutral” way, consistent with the claims
of right at issue, to prefer one over the other.
To reiterate then, the Court was faced with not one but two types of
conflict: the first between various individual rights claims (some of which
are internal to article 18, others of which are between article 18 and other
related rights such as freedom of expression) and the second between incompatible conceptions of the collective good. These two types of conflict are
conceptually interrelated. In order to understand the nature of that interrela-
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tionship, we need to examine how rights discourse imagines and constructs
the relationship between individual rights and collective goods. At this
stage of my argument, however, I wish merely to refer to one possibility:
while the formality of rights discourse may obscure the fact, there may be no
principled way—consistent with what Jeremy Waldron has termed the “liberal algebra”106—to resolve such conflicts other than by seeking a form of
reconciliation or modus vivendi between the particular conceptions of the collective good of different (majority and minority) groups in the historical
context of a particular political community. To do so, however, risks undermining the rationale for human rights in the first place, i.e., the idea that
rights are independent of the good (and thus not subject to the potentially
unjust demands of majoritarian politics) and are both compossible and adequate in the sense indicated by Waldron. The underlying problem, as John
Gray has recently argued, is that the freedoms that liberal rights protect are
not necessarily compossible and may in fact be rivals:
[I]f such conflicts can be resolved only by invoking judgements of the
good on which reasonable people may differ; if, in the absence of such
judgements, liberal principles are devoid of content; if, that is to say,
applying liberal principles necessarily involves resolving conflicts
among incommensurable values—then liberal principles have nothing
of the simplicity of which Rawls speaks. Liberal regimes are no different from others in having to make choices between rival freedoms; but
liberal principles cannot tell them how to make them.107
Indeed, as the case of proselytism illustrates, liberal rights not only are rivals
inter se but also may be internally inconsistent and contested. The Kokkinakis
case demonstrates that the right to freedom of religion or belief generates
competing claims not only with other rights (such as freedom of expression)
but also within the right to religious freedom itself.
Confronted as it was with these two types of conflict, and the background
theoretical controversies to which they give rise, the court in Kokkinakis cau-
106. Waldron observes that the “liberal algebra” seeks to secure order in a way that is fair to the aims
and activities of all. This aim is “Kantian in inspiration: Act externally in such a way that the free use of
your will is compatible with the freedom of everyone according to a universal law.” Thus,
the liberal claim “may be described as the task of specifying a set of constraints on conduct
(call it set C), satisfying two conditions: (1) no two actions permitted by C conflict with one
another; and (2) for each individual who is subject to C, the range of actions permitted by C is
adequate for the pursuit of his ends. I shall call these the requirements of compossibility and
adequacy. Together they amount to something like algebraic specifications for the formal
structure of a liberal society.
Jeremy Waldron, Toleration and Reasonableness, in THE CULTURE OF TOLERATION IN DIVERSE SOCIETIES:
REASONABLE TOLERANCE 13, 14–15 (Catriona McKinnon & Dario Castiglione eds., 2003). For a full
discussion of the notions of compossibility and adequacy, see infra notes 233–32 and accompanying text.
107. JOHN GRAY, TWO FACES OF LIBERALISM 69 (2000).
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tiously resorted to a form of “decisional minimalism.”108 In seeking to avoid
high-level theorizing, the court formulated a pragmatic distinction between
“proper” and “improper” proselytism. To be fair, this was a reasonable approach given that the Greek law itself sets up the distinction between certain actions regarded as acceptable and certain other types of actions
regarded as unacceptable (i.e., actions involving inducement, or promises of
inducement, or moral or material support, or fraud, or taking advantage of
certain vulnerable attributes of the target). Factors such as these required the
Court carefully to examine contextual issues such as the time, manner, and
place of the religious expression; the interests of the target in receiving that
expression (especially in the case of willing listeners); and the character of
the expression itself.
In seeking to distinguish proper from improper religious expression, we
can immediately identify a category of harmful actions that arguably should
be limited—disrupting services of worship, cult-style brainwashing, or the
deliberate targeting of the most vulnerable members of society. We are uncomfortable, for example, with the notion that Christian evangelists can
march into mosques or synagogues or that missionaries can approach children. But at the same time, we can also see that there will be many situations involving acts of proselytism that will not be as clear cut. The
situation of religious speech in the workplace, for example, raises a complex
constellation of conflicts between the rights and interests of both employers
and employees.109
b. The Indeterminacy of Harm
In seeking to justify the statute and set out the general principles or concerns that mark the proper from the improper, we therefore need to think
harder about certain background questions at the intersection of individual,
religion, and state. In this respect, the Court declined either to advance a
conceptual justification for the proper/improper distinction or to indicate a
test to be used in specific cases.110 One can, of course, imagine various possible ways of doing so. Stahnke, for example, has proposed a practical framework to assist decisionmakers in disentangling the factors used to draw the
108. The term is Cass Sunstein’s and refers to the practice of saying no more than is necessary to
justify an outcome and leaving as much as possible undecided in order to lessen the burdens of judicial
decision and to lessen the risk of damaging judicial errors. See CASS R. SUNSTEIN, ONE CASE AT A TIME:
JUDICIAL MINIMALISM ON THE SUPREME COURT 9–23 (1999).
109. See, e.g., EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) (“Christian, faithoperated business” requiring all workers regardless of their own religious or non-religious beliefs to
attend weekly religious services); Brown Transport Corp. v. Pennsylvania Human Relations Comm’n,
578 A.2d 555 (Pa. 1990) (Bible verses on paychecks and Christian religious content in a company
newsletter). For detailed discussion of these cases and the conflicts that they raise between the rights
claims of employers and employees involving religious expression, see Greenawalt, supra note 91, at
36–56.
110. It was the Court’s failure to define the term “improper proselytism” or to analyze in any depth
these conflicting rights and interests that Judge Pettiti was most critical of in Kokkinakis. See Kokkinakis
v. Greece, App. No. 14307/88, 260 Eur. Ct. H.R. (ser. A) ¶ 25 (1993).
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line between proper and improper proselytism. This involves four interrelated variables, the touchstone of which is the notion of “coercion”: (1) the
attributes of the source of proselytism;111 (2) the attributes of the target of
proselytism;112 (3) where the action alleged to be improper proselytism takes
place;113 and (4) the nature of the action.114 Each of these variables can be
laid out on a scale that will provide a starting point for a “more focused
discussion on the range of choices available to states consistent with international human rights standards.”115
What is instructive about this approach is its pull toward concrete questions of fact—i.e., reliance on variables corresponding closely with particular
factual circumstances and context—and its corresponding avoidance of questions of high-level theory. But the difficulty with this contextual analysis is
that the constellation of rights claims of both source and target appear indeterminate absent some background theory of justice capable of providing
111. The question here is whether there exists some “physical, legal or economic advantage” that the
source has in relation to the target. Stahnke lists examples of potentially coercive sources: “the state and
its official representatives, private persons acting with state authority or endorsement, providers of important health or social services, and employers or employment superiors.” Stahnke, supra note 24, at
328. He further notes that one “coercive relationship that is generally left untouched by States is that
between parents and children.” Id. at 328 n.220. The European Court recognized this dynamic in Larissis
v. Greece, App. No. 140/1996/759/958-60, 140 Eur. Ct. H.R. (ser. A) ¶ 51 (1998) (conviction of two
Greek military officers for improper proselytism of their military subordinates).
112. The concern here is with the “perceived susceptibility of the target to the types of persuasion
(and, potentially, coercion) that may be employed by different sources.” This vulnerability may result
from the “relationship to the source” or from the “nature of the target.” For example, this category
would include “children, as well as targets that are uneducated, naı̈ve, or generally weak or unsure of
themselves.” Stahnke, supra note 24, at 332. Another important attribute of vulnerability is financial
need. See, for example, the argument of the Nepalese government that legal protections against proselytism are needed in Nepal to guarantee the rights of “weak person[s]” and to “discourage the anomaly in
a socio-economically weak society where instances of involuntary religious conversion are found to have
taken place by means of financial enticement and other temptations.” U.N. Econ. & Soc. Council,
Comm’n on Hum. Rts., Implementation of the Declaration on the Elimination of All Forms of Intolerance and
Discrimination Based on Religion or Belief, ¶ 66, U.N. Doc. E/CN.4/1994/79 (Jan. 20, 1994) (prepared by
Abdelfattah Amor).
113. The question here is whether the target is in a particular place by choice and is free to leave. For
example, proselytism is an “expected manifestation of religious belief when it takes place at the place of
worship or in the religious classroom of the source, at least as long as the targets are at these places
voluntarily.” Stahnke, supra note 24, at 334. The more difficult issue, however, concerns places open to
the public like streets, parks, government offices, courtrooms, schools, and other “public” facilities.
114. The last factor involves the “nature of the exchange . . . between the source and target” and is
the most important regarding the notion of coercion. This can range from a mere exchange of ideas to
“conversion or change in beliefs through violence or threats of violence.” It can also include “promises or
offers of something of value to the target in exchange for their change in beliefs or affiliation.” For
example, India, Israel, and Greece each have proselytism statutes prohibiting the offer or granting of
tangible benefits, such as money, “material assistance,” or “social advantages,” in exchange for a change
in religious beliefs and affiliation. Id. at 335–37 (Greece: Section 4 of Act 1363/1938; India: Orissa
Freedom of Religion Act 2 of 1968; Israel: Penal Law Amendment (Enticement to Change Religion),
5738-1977).
115. Stahnke’s argument is that in developing the basic notion of “coercion” that underlies this area
of human rights law, these factors need to be considered in order to establish a sound analytical approach
consistent with evolving ECHR jurisprudence. He concludes that the failure to do so will perpetuate the
current low level of protection for the rights of minority religious groups in many European states.
Stahnke, supra note 24, at 332–39.
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either a hierarchy of the rights at issue or some substantive content to concepts such as “coercion” or “harm.”116 Indeed, as Kokkinakis shows, analyzing such questions in formal terms by considering only individual claims of
right fails to explain either why proselytism is such a controversial and contested issue or why states regard it as necessary to enact laws restricting
individual freedom (and not only of proselytizers but also of the targets of
proselytism). In order to confront these questions, we need to understand
the collective dimensions of individual rights (i.e., the interests and conceptions of the good protected by the right to freedom of religion and belief) as
well as the relationship between not just the individual and the state but
also between differently situated groups within the state and the corresponding tensions that arise from different individual and collective rights claims.
I have discussed these particular questions extensively elsewhere.117 For present purposes, I wish only to illustrate how even a cursory consideration of
broader questions of social and historical context will have an important
bearing on how we understand legal restrictions on proselytism.
c. Community, History, Context
Questions of the historical relationships between groups within particular
societies (i.e., different views of the good in terms of different conceptions
not only of nationalism but also of minority and indigenous rights)—and
their complex interrelationship within the legal framework of the state—are
pivotal to any understanding of how and why proselytism raises concerns for
human rights. Consider the following two general examples. The first concerns those states in Central and Eastern Europe that, after the fall of communism, enacted laws to limit the rights of religious minorities, especially
so-called foreign “cults” and “new religious movements.” Russia, for example, in 1997, enacted a Law on the Freedom of Conscience and Religious
Associations that distinguishes between, and assigns different rights to, “religious organizations” on the one hand and “religious groups” on the other
116. This problem is well-illustrated by the indeterminacy surrounding Mill’s “harm principle.” For
Mill, the “only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others.” JOHN STUART MILL, ON LIBERTY 68 (Gertrude Himmelfarb ed., Pelican Books 1974) (1859). As Koskenniemi has argued, the difficulty is that
liberal theory is unable to provide any criteria by which to delimit the harmless from the harmful. If
“harm” means a violation of individuals’ interests, then an objective criterion is needed to determine
what interests are possessed by individuals even without their acknowledgment (i.e., a theory of the kind
recognized by Hobbes, Locke, and Rousseau of “natural” or “objective” interests distinct from subjective
desires). But such a theory of the “natural good” violates liberalism’s skepticism regarding the objectivity of values. Any constraint seems a violation of individual freedom as what counts as “harm” can only
be subjectively determined. Conversely, if “interest” means no more than “desire” and harm thus means
anything that directs itself against what people desire, then there is no determinate concept of harm at
all. “If the continuing (private) behaviour of some people could count as ‘harm’ (because it directs itself
against somebody’s wants) then we would ultimately violate the ratio of the harm principle itself, namely
the purpose of establishing and protecting people’s private spheres.” MARTTI KOSKENNIEMI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT 87 (2006).
117. See Danchin, supra note 16, at Part V.A (discussing the relationship between communal goods
and individual rights).
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based on a fifteen-year residence requirement.118 The legislation has had the
effect of re-establishing state control over religious affairs in Russia and consolidating the “special relationship” between the state and the dominant
Russian Orthodox Church while at the same time discriminating against
various “new” religions in the country.
As the successor to the more open “liberal” Soviet legislation of 1990, the
“regressive” 1997 law was hardly a surprise, however. Having survived the
communist attempt at anti-religious socialization of the population, the
traditional churches in Russia were at that time facing a myriad of severe
social problems including demographic imbalances, limited expertise in developing a “practical theology,” and, in many instances, crippling poverty.119 In response, they sought special constitutional protections and
preferences from the state while at the same time requesting strict control
over “other” religions, particularly those considered to be foreign and wellresourced.120 In December of 1996, Patriarch Aleksii II put the position of
the Russian Orthodox Church as follows:
It is our obligation to battle for people’s souls by all legal means available, rather than allowing them to perish. [We must] react to the continuing intense proselytizing activity by some Catholic circles and
various Protestant groups . . . [and] to the growing activity of sects,
including those of a totalitarian nature . . . [for] it is largely our own
brothers and sisters who fall victim to these sects.121
118. The 1997 Russian law extends to “religious organizations,” and denies to “religious groups,”
the “privilege of acquiring juridicial personality, of receiving direct financial benefits from the state, and
of being entitled to own real property and commercial enterprises, as well as to operate religious, educational, cultural, and social institutions and charitable activities, and to receive and disseminate religious
literature.” Little, supra note 68, at 47; see also T. Jeremy Gunn, Caesar’s Sword: The 1997 Law of the
Russian Federation on the Freedom of Conscience and Religious Associations, 12 EMORY INT’L. L. REV. 43 (1998).
119. See, e.g., Eileen Barker, The Protection of Minority Religions in Eastern Europe, in PROTECTING THE
HUMAN RIGHTS OF RELIGIOUS MINORITIES, supra note 42, at 58–86 (discussing the impact of foreign
“new religions” in post-communist societies and the relationship between national identity and exclusive
association with a particular religion or “Mother Church”).
120. Stahnke includes “foreign sources” as one of the factors to be considered in his framework. This
includes concerns, in the colonial context, of the religious intolerance expressed toward foreign missionaries due to the civil power they once possessed (e.g., in China, concerns about foreign interference
through religious groups in the internal political affairs of the state) and concerns over economic advantage, especially where foreigners from wealthy states are operating in poor and developing countries and
have far greater economic means than local peoples and institutions. See Stahnke, supra note 24, at
330–31.
121. John Witte, Jr., Introduction—Soul Wars: The Problem and Promise of Proselytism in Russia, 12 EMORY INT’L L. REV. 1 (1998) (quoting Aleksii II, Patriarch of Moscow and All Russia, Address of the
Patriarch to the Councils of the Moscow Parishes at the Episcopal Gathering (Dec. 12, 1996), in 6
TSERKOVNO-OBSCHESTVENNYI, Dec 26, 1996, at 7) (alterations in original). Barker notes that many of
the well-resourced foreign missionaries and “new” minority religions in Eastern and Central Europe have
“not only experience in teaching and proselytizing, but also access to expensive technology with which
they can communicate their message to tens of thousands or more at a time.” Barker, supra note 119, at
69–70.
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The traditional churches sought to use nationalist sentiments to bolster their
attempts to regain their former ascendancy (i.e., “to be Russian is to be
Orthodox”). This, in effect, was a plea for a form of “group rights” structure—one that allowed the state positively to protect and support the dominant faith while at the same time providing only limited recognition and
protection to minority faiths. The degree of limitation and restriction would
then depend on various factors, including the identity and historical acceptance of the minority group in question.122
In this historically and socially situated moment in Russia’s struggle to
establish new religion-state relationships following the collapse of communism and “official atheism,” Harold Berman argued that
[Russia] is undergoing an unprecedented historical experience of tumultuous and even catastrophic transition from one type of political
system to another, from one type of economic system to another, and
from one type of belief system to another. It is entirely inappropriate,
in my view, to apply to Russia today the broad provisions on religious
freedom of the international human rights covenants without taking
into consideration Russia’s present situation viewed in the light of
Russia’s historical experience. Rights may properly be declared in universal terms, but their application in specific cases must always take
into account the specific circumstances of those cases.123
In Berman’s view, therefore, the 1997 Russian law may not only be an acceptable limitation on the right to religious freedom of certain (proselytizing) minority religions but may in fact be a necessary one given the
historical and societal factors at issue. Regardless of the merits of this argument, my point is that these types of considerations—and their undeniable
importance to our understanding of a particular set of circumstances implicating the right to religious freedom—are invisible to analysis solely
through the lens of the liberal rights framework.124
My second example concerns the modern states of Africa, which, four
decades after decolonization, remain mired in crises of cultural, religious,
and racial identity. According to John Pobee, religion and the treatment of
African religions within the African state have been significant sources of
social and political rupture.125 Mutua has described the situation as follows:
122. This idea is further developed in Danchin, Religion, Religious Minorities and Human Rights: An
Introduction, in PROTECTING THE HUMAN RIGHTS OF RELIGIOUS MINORITIES, supra note 42, at 10–11.
123. Harold J. Berman, Religious Rights in Russia at a Time of Tumultuous Transition: A Historical Theory,
in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: LEGAL PERSPECTIVES, supra note 14, at 285–86.
124. One could imagine, for example, the Russian government invoking considerations of “public
order” as its justification for limitations on the religious freedom of minority religions. But, as we have
seen, this does not capture the true justifications or factors that explain the perceived need for the 1997
law.
125. John S. Pobee, Africa’s Search for Religious Human Rights Through Returning to Wells of Living Water,
in RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE: LEGAL PERSPECTIVES, supra note 14, at 391.
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[T]he modern African state, right from its inception, has relentlessly
engaged in a campaign of the marginalization, at best, or eradication,
at worst, of African religion. Further . . . the destruction and delegitimation of African religion have been actively effected at the urging, or
with the collusion and for the benefit of, either or both Islam and
Christianity, the two dominant messianic traditions.126
Mutua’s argument is that the conscious and planned displacement, vilification and even demonization of African religion—first by missionaries and
colonial administrations and later by mission-educated African elites forging
the postcolonial state—goes beyond the legitimate bounds of manifestation
of religion or belief and constitutes a gross violation of the human right to
religious freedom of African peoples themselves.127 He notes that the idea of
converting the “other” is largely unknown to African peoples because their
religions—which are communal and non-universalist—are their collective
identity and way of life.128 In spite of this fact, none of the constitutions of
the newly independent African states—written by European lawyers on the
eve of independence—make mention of African religions but instead seek to
transplant a formal liberal state structure, including the protection of religious freedoms such as the right to proselytize, into the former colonies.129
Indeed, to this day some postcolonial states impose bans on important elements of African culture and religion.130
126. Makau Mutua, Returning to My Roots: African “Religions” and the State, in PROSELYTIZATION AND
COMMUNAL SELF-DETERMINATION IN AFRICA, supra note 24, at 170.
127. It is a “repudiation, on the one hand, of the humanity of African culture and, on the other, a
denial of the essence of the humanity of the African people themselves.” Id. (citing JOHN MBITI, AFRICAN RELIGIONS AND PHILOSOPHY 13 (1970) (noting that most missionaries regarded African religions as
primitive, superstitious, and savage)).
128. “It is . . . tautological to talk about the religion of the Yoruba, for instance, because their
identity is their religion.” Mutua, supra note 126, at 172. As Mbiti notes, in traditional African society
there was no dichotomy between the secular and the religious or between the material and the spiritual:
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Wherever the African is, there is his religion: he carries it to the fields where he is sowing
seeds or harvesting a new crop; he takes it with him to the beer party or to attend a funeral
ceremony; and if he is educated [formal Western education], he takes religion with him to the
examination room at school or in the university; if he is a politician he takes it to the house of
parliament. Although many African languages do not have a word for religion as such, it
nevertheless accompanies the individual from long before his birth to long after his physical
death.
Mbiti, supra note 127, at 2–3.
129. See, for example, Kenya’s 1963 independence constitution which in section 22(1), drawing expressly on language in the international human rights instruments, guarantees freedom of religion to
each person, including the “freedom to change his religion or belief, and freedom, either alone or in
community with others, and both in public and private, to manifest and propagate his religion or belief
in worship, teaching, practice and observance.” The constitutions of Malawi, Nigeria, Zambia, and the
Republic of the Congo provide virtually identical rights and protections. CONSTITUTION § 33 (1999)
(Malawi); CONSTITUTION § 24 (1963) (Nigeria); ZAMBIA CONST. § 24 (1964); CONSTITUTION art. 25
(1964) (Congo).
130. This has occurred, for example, in those states that are either constitutionally Islamic or proclaim
Islam to be the religion of the state, such as Algeria, Egypt, Libya, Morocco, Tunisia, and Mauritania.
The one important exception is post-apartheid South Africa, which, while not explicitly mentioning
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On Mutua’s view, therefore, the real question is not why postcolonial
African constitutions contain human rights protections of religious freedom,
but why they do not contain explicit recognition of African religions that, in
turn, would justify the enactment of measures restricting the freedom of
foreign proselytizing religious groups while protecting the religious freedom
of African peoples. Indeed, the 1981 African Charter on Human and Peoples’ Rights seeks to recognize this need by defining a concept of human
rights which requires the state not only to protect religious freedom but also
to promote and protect “morals and traditional values recognized by the
community,” to assist the family, which is the “custodian of morals and
traditional values,” and to join popular struggles against “foreign cultural
domination.”131
d. Beyond the Liberal Algebra
My general point is that a pluralistic society comprised of competing
comprehensive conceptions of the good will inevitably face the need to restrict religious freedom in ways that liberal rights theory will have difficulty
either explaining or accepting. We are not dealing here with two abstract
individuals—A and B—stripped of all their contingent characteristics
standing in a Rawlsian original position in a situation of perfectly symmetrical equal freedom. Were such a scenario even conceivable, there would be
little controversy. A and B would have an equal right to religious expression
and, as is often said by liberal theorists, A’s right would end where B’s nose
begins. We would ask, in other words, whether B was a willing listener and
to the extent that B was unwilling (i.e., to the extent that A’s proselytizing
speech caused some identifiable harm or coercion to B) we would seek to
justify some limit to A’s individual freedom. Of course, as already mentioned, this would require us to advance some moral conception of harm or
coercion in order to mark the boundary between proper and improper conduct. This in itself would be a daunting task because, in order to work out
the precise boundary between the two equal individual freedoms, it would
require us to advance a view of the good (for example, some conception of
moral personality based on the notion of free will).132
African religions, in its 1996 Constitution recognizes the “institution, status, and role of traditional
leadership, according to customary law.” S. AFR. CONST., ch. 12, §§ 211–12 (1996). For a detailed
discussion of constitutional provisions concerning religion in countries in southern Africa, see Christof
Heyns & Danie Brown, The Constitutional Protection of Religious Human Rights in Southern Africa, 14 EMORY
INT’L L. REV. 699 (2000).
131. African Charter on Human and Peoples’ Rights, June 27, 1981, OAU Doc. CAB/LEG/67/3/
Rev.5 (1981), arts. 17, 18(2), 20(3). The Preamble to the African Charter states that it is inspired by the
“virtues” of African “historical tradition” and the “values of African civilization.” It prohibits discrimination based on religion (art. 2) and guarantees freedom of religion or belief (art. 8); see also Makau wa
Mutua, The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35
VA. J. INT’L L. 339 (1995).
132. Seeking to draw the line at “willing listeners” based on some notion of autonomy does not
resolve the problem. This is because, however we conceive of and develop a comprehensive conception of
moral autonomy and personality, it will have certain indispensable content, some of which will be con-
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But the problem that confronts us in cases like Kokkinakis is actually even
more complex than this. A is a member of a small minority group (let us call
it JW—the Jehovah’s Witnesses), the collective identity of which is related
to a particular religious tradition that includes among its central tenets a
religious duty of proselytism. B, on the other hand, is a member of a majority group (let us call it EO—Greek Eastern Orthodoxy), the collective identity of which is related not only to a particular dominant religious tradition
but also to the historical character and identity of the state itself. We are
now faced with the problem of trying to work out not only the meaning of
the individual freedom of A and B—which bears a complex moral relationship, as yet unspecified, to their respective groups JW and EO—but also the
ethical meaning of the relationship between JW and EO inter se.
Judge Martens assumed that the first question could be answered without
considering the relationship of A and B to their respective groups. This was
regarded as possible by invoking the asserted “neutrality” of the state—a
neutrality that, in the case of the Greek nation-state, does not actually exist.
Judge Valticos on the other hand, while rejecting any pretense to neutrality,
assumed that the second question could be answered by considering only the
relationship between B and EO and not taking into account the relationship
between either A and JW or between JW and EO. The meaning of the
(moral) right to freedom of religion for Judge Valticos, in other words, did
not include the harmful action of proselytism—“harm” in this respect being defined in terms of EO’s conception of the good. This fails to recognize
the legitimate claims of JW to a different conception of the good (one that
includes the religious obligation of proselytism).
It is not my intention to unpack these competing claims further here. My
general point is that the right to freedom of religion and belief gives rise to
both moral and ethical questions that bear a complex relationship to different types of relations between individuals and groups—what Robert Cover
once termed different normative worlds or paideic nomoi.133 More so perhaps
than in cases of free speech alone,134 conflicts involving claims of religious
troversial. See, e.g., JEREMY WALDRON, GOD, LOCKE AND EQUALITY: CHRISTIAN FOUNDATIONS IN
LOCKE’S POLITICAL THOUGHT 239–40 (2002) (comparing “John Locke on God” to “John Rawls on
moral personality”). Waldron suggests that Rawls’s conception in his political liberalism of the human
person as a free agent with certain moral powers “has to be able to do by itself . . . all the work for
equality that is done, for Locke, by the notion of our status in the eyes of God.” Id. In proceeding to note
that Rawls’s theory does not necessarily fail by relying on some comprehensive conception of moral
personality, Waldron argues that the “overlapping consensus that defines his political liberalism does
have indispensable content, and some of that content is controversial.” Id.; see also Peter W. Edge, Religious
Rights and Choice under the European Convention on Human Rights, 3 WEB J. CURRENT L. ISSUES (2000)
(noting that “the existing Protestant and Enlightenment focus on belief [and individual choice] as the
foundation of religious interests” is given a central place in the article 9 jurisprudence of the European
Court of Human Rights).
133. Robert M. Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 HARV. L.
REV. 4, 12 (1983).
134. Of course, conflicts involving freedom of expression may also involve conflicts between groups
and thus the same point applies to issues like hate speech and threats to national security (e.g., restric-
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freedom cannot meaningfully be addressed or properly understood without
taking into account these collective dimensions of the question. Accordingly, in the case of the newly democratic states in Central and Eastern
Europe, or indeed in the case of Mr. Kokkinakis in Greece, the question of
whether proselytism constitutes a violation of human rights cannot meaningfully be addressed under an analytical framework of the kind proposed by
Stahnke without taking into account the broader historical and inter-group
context in which these forces and actors are operating.
As regards matters of history, this includes not only the history of the
particular political community in which the question is being contested, but
also the history of the idea of religious freedom itself and its relationship to
that community. One might expect, for example, that the notion of religious freedom as a constitutionally protected human right may have a different resonance and meaning in Eastern Europe as opposed to, say, Eastern
Africa. As regards matters of differently-situated groups, this includes not
only the relationship between the individual and the various collective structures in different political communities (whether that is the nation-state, a
religious minority, or an indigenous people), but also the relationships between individual rights and differing conceptions of the collective good. If
this is correct, then the question of whether proselytism constitutes a violation of human rights will turn in large measure on how the individual rights
claims at issue are understood in terms of the corresponding background
conceptions of the good which are in conflict.135
We can now perhaps see how considerations of this type would change
the reasoning of the court in Kokkinakis. If the individual freedom of the
proselytizer is interpreted in terms of the collective good of the majority
religious group (i.e., the Greek nation-state), then the court will be likely to
allow the state to proscribe a wider scope of acts as constituting “improper”
proselytism. If, on the other hand, the court considers the individual freedom of the proselytizer in terms of the collective good of the minority religious group (i.e., Jehovah’s Witnesses), then it is likely to restrict the scope of
acts that the state can proscribe as “improper” proselytism. While on the
basis of the specific facts in Kokkinakis the case was decided in favor of the
tions on political speech said to threaten the “democratic values” of the state). But issues of freedom of
religion or belief will often raise deeper tensions involving questions of (ascriptive) collective identity and
the character of the (nation-)state itself that bear an important conceptual relationship to the meaning of
individual freedom.
135. Note, for example, the following argument by Serhii Plokhy in relation to the state of religious
pluralism in Russia and Ukraine:
[G]overnment policy toward religious minorities in the postcommunist countries is influenced
mainly by the kind of relationship that emerges between the state authorities on the one hand
and the dominant religious groups on the other. . . [T]he character of [that policy] toward the
dominant churches is influenced by the character and intensity of the nation-building process
that is currently under way . . . .
Serhii Plokhy, State Politics and Religious Pluralism in Russia and Ukraine: A Comparative Perspective, in
PROTECTING THE HUMAN RIGHTS OF RELIGIOUS MINORITIES, supra note 42, at 297–98.
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proselytizer and against the state,136 it is apparent that the court has generally construed individual rights in terms of the collective good of the majority as against that of minority religious groups.137 This approach does not
prevent minority religious groups from freely practicing their beliefs as
guaranteed under article 9—at least not in those “private” spaces of the
private sphere such as homes or places of worship (although not in those
“public” spaces of the private sphere such as the streets or open spaces where
the rights and freedoms of others may be implicated). Rather, it means that
in cases of conflict, the court will prefer the majority nation’s conception of
the collective good including the limits to individual freedom implied by
that conception.
Given the dangers of this approach for a liberal theory of human rights
(i.e., for any approach that privileges individual freedom), the Court has
employed a variety of techniques including the “margin of appreciation”
and tests of “reasonableness” to mask the partiality of its reasoning in determining outcomes. Viewed in this way, Judge Martens’s assertion of an absolute right to religious freedom in accordance with strict state neutrality is
unconvincing. In seeking to reach some kind of balance or modus vivendi
between personal autonomy and religious social forms in the context of the
European nation-state system, the Court has tacitly endorsed what I term a
theory of “liberal value pluralism,” while formally justifying its reasoning
in terms of a theory of “liberal neutrality.”
This proposition can be illustrated by the recent twin cases of Efstratiou v.
Greece and Valsamis v. Greece in which the Court held that requiring students
to take part in school parades commemorating the outbreak of war between
Greece and Italy in 1940 was not an interference with either their or their
parents’ pacifist convictions as Jehovah’s Witnesses.138 In accordance with
what the Court deemed to be “objective criteria,” the legitimate societal
objective of achieving national unity was held to outweigh the deeply held
religious convictions of the Witness children and their parents against participation in the parade. The majority judgment justified its finding of the
limited impact of requiring the applicants’ attendance by reiterating that
the parade served the dominant “public interest” (i.e., the majority’s conception of the collective good). This was because the commemoration of
national events served both pacifist and public interests, and because the
136. As noted above, the Court did not find that the Greek proselytism law itself was contrary to
article 9, only that the reasoning of the Greek courts was insufficiently precise as to specify why Kokkinakis’s proselytism was improper.
137. See Peter W. Edge, The European Court of Human Rights and Religious Rights, 47 INT’L & COMP.
L.Q. 680 (1998); Gunn, supra note 104, at 325.
138. Efstratiou v. Greece, App. No. 24095/94, 24 Eur. H.R. Rep. 294 (1997); Valsamis v. Greece,
App. No. 21787/93, 24 Eur. H.R. Rep. 294 (1997). The Court further held that suspending pupils for
refusing to march in such parades did not violate their freedom of religion in that the disciplinary rules
applied generally and in a neutral manner. Important to the Court’s reasoning was the finding that such
measures had a limited duration and therefore a limited impact.
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presence of military representatives at the parade did not alter its nature as
an expression of national values and unity.139
In a joint dissenting opinion, judges Thor Vilhjalmesos and Jambrek argued that the applicant’s experience of being forced to participate in the
parade was clearly contrary to her “neutralist, pacifist and thus religious
beliefs.”140 Viewing the question of individual freedom more from the perspective of the minority conception of the good, they argued that the applicant’s perception of the symbolism of the parade and her religious and
philosophical convictions should only be rejected by the Court if they were
clearly unfounded or unreasonable. In the circumstances, there was no basis
for regarding her participation as necessary in a democratic society, even if
the public event was for most people an expression of national values and
unity.
3. Freedom from Injury to Religious Feelings
That is all that I wish to say on the subject of the conflict between the
freedom to manifest and the freedom to have and peacefully maintain one’s
religion. There is, however, a final bundle of claims by the target of proselytism that we must consider—the right to be free from injury to religious
feelings.
There is no explict provision in the international instruments stating that
individuals or groups have a right to be “free from injury to religious feelings.” However, article 20(2) of the ICCPR provides that “[a]ny advocacy of
national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Furthermore, article
19(3) qualifies the right to freedom of expression by stating that the exercise
of this right
carries with it special duties and responsibilities . . . [and] may therefore be subject to certain restrictions . . . provided by law and . . .
necessary:
a. For respect of the rights or reputations of others;
b. For the protection of national security or of public order (ordre
public), or of public health or morals.141
139. Efstratiou, 24 Eur. H.R. Rep. at 295, ¶ 32. Furthermore, the majority suggested that the applicants’ religious interests were being adequately addressed by other means such as exemption from religious education lessons, school prayer, and the Orthodox mass.
140. Id. at 322, ¶ 34.
141. ICCPR, supra note 10, arts. 19(3), 20(2). There are similar provisions providing protection
against such incitement in other international conventions. See, e.g., Race Convention, supra note 13, art.
4 (requiring states to prohibit and punish not only incitement to racial discrimination and violence, but
also the dissemination of ideas “based on racial superiority or hatred”); American Convention, supra, note
23, art. 13(5) (any advocacy of national, racial, or religious hatred constituting “incitement . . . to lawless
violence or to any other similar illegal action against any person or group of persons on any grounds
including those of race, color, religion, language, or national origin” considered as offenses punishable by
law).
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The specific words “injury to religious feelings” are also found in the jurisprudence of the European Court and former Commission. The Commission
stated in Wingrove v. United Kingdom that while religious believers could not
expect to be exempt from all criticism and must tolerate the denial by others
of their beliefs, the state has a responsibility to ensure the peaceful enjoyment of believers’ rights under article 9 and the English law of blasphemy
was “intended to suppress behavior likely to cause justified indignation
among believing Christians.” As a consequence, it was “intended to protect
the right of citizens not to be insulted in their religious feelings.”142
For reasons soon to be apparent, the conflicts arising from this set of
claims are equally if not more intractable than those we have considered to
date. As Krishnaswami has observed, many states have laws prohibiting
blasphemy or injury to religious feelings:
It is to prevent the dissemination of a faith in a manner offensive to
others that special laws, such as laws against blasphemy have been enacted . . . . Unfortunately, in some cases the laws against blasphemy
have been framed in such a manner that they characterize any pronouncement not in conformity with the predominant faith as blasphemous . . . [Such laws] have sometimes been used to limit unduly—or
even to prohibit altogether—the dissemination of beliefs other than
those of the predominant religion or philosophy.143
We are thus confronted here with a conflict between the freedom of the
proselytizer (or, for present purposes, the blasphemer, whether religious or
irreligious) either to manifest her religion or belief or to exercise her right to
freedom of expression (or both), and the freedom of the target of proselytism
to be free from injury to her religious feelings in those circumstances, as yet
undefined, which are legitimately protected by the offense of blasphemy.
Such conflicts have been the subject of a voluminous literature that I do
not wish to revisit in detail here.144 Rather, I wish to make two general
observations. The first is that this conflict of rights—involving as it does
claims to both freedom of religion and expression—raises all the same dilemmas discussed previously. In addition, however, it raises further difficult
142. Wingrove v. United Kingdom, App. No. 17419/90, 24 Eur. H.R. Rep. 1 (1997), ¶¶ 52–53
(1997); see also EVANS, supra note 34, at 339.
143. Krishnaswami Study, supra note 14, at 41. The term “blasphemy” has been defined as
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purposely using words concerning God calculated and designed to impair and destroy the
reverence and confidence due to Him as the intelligent creator, governor, and judge of the
world. . . . It is a willful and malicious attempt to lessen men’s reverence of God by denying
His existence, or His attributes as an intelligent creator, governor, and judge of men, and to
prevent their having confidence in Him as such.
Stahnke, supra note 24, at 290 (quoting BLACK’S LAW DICTIONARY 216 (4th ed. 1968)).
144. See, e.g., H.M. KAMALI, FREEDOM OF EXPRESSION IN ISLAM (1997); SACRILEGE VERSUS CIVILITY:
MUSLIM PERSPECTIVES ON THE SATANIC VERSES AFFAIR (A.R. Kidwai & M.M. Ahsan eds., 1991);
Stahnke, supra note 24, at 289–99. For a general discussion in the context of the ICCPR, see MASHOOD
A. BADERIN, INTERNATIONAL HUMAN RIGHTS AND ISLAMIC LAW 125–29 (2003).
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questions regarding, in the words of ICCPR article 20(2), incitement to
discrimination, hostility, or violence. Religious belief can play a role both in
the source of the prohibited incitement and in the selection of the target.
Religions have been and continue to be fertile sources of prejudice and hatred, often leading to discrimination and violence. Strong anti-religious beliefs have been manifested in a similar fashion. The Human Rights
Committee has stated that any manifestation of religion or belief that
amounts to incitement to discrimination, hostility, or violence is not protected under the right to freedom of religion in article 18.145 Furthermore,
given that it is often on the basis of religious identity or belief that persons
or groups are targeted for such incitement, the Committee has noted that
the protection afforded by article 20(2) of the ICCPR is directly related to
the exercise of the rights protected under articles 18 and 27.146
The difficulty, as discussed above, is that certain manifestations of religion, especially in the form of proselytism, are often likely to amount to at
least some form of “incitement to discrimination or hostility.”147 Recall, for
example, the role of Christian missionaries in many parts of Africa or the
intolerance that is sometimes shown by religious leaders and believers toward other religions or nonbelievers. Furthermore, there is an obvious tension between the obligation to prohibit incitement to discrimination,
hostility, or violence and the obligation to ensure the right to freedom of
expression.148 In its General Comment on article 20, the Human Rights
Committee stated that article 20(2) is “fully compatible with the right of
freedom of expression as contained in article 19 the exercise of which carries
with it special duties and responsibilities.”149 This assertion is open to question, however, when one considers that certain states have entered reservations to article 20(2) on the very grounds that it infringes on
constitutionally protected rights to freedom of expression. The United
States, for example, has rejected the position of the Human Rights Committee arguing that article 20(2) requires the suppression of expression on the
basis of content alone rather than on the basis of a demonstrated connection
between the content of the expression and its effect on public order or the
rights of others: “Under the First Amendment [to the U.S. Constitution],
145. See General Comment 22, supra note 22, ¶ 7.
146. Id. ¶ 9 (stating that the “measures contemplated by article 20, paragraph 2, of the Covenant
constitute important safeguards against infringement of the rights of religious minorities and of other
religious groups to exercise the rights guaranteed by articles 18 and 27, and against acts of violence or
persecution directed toward those groups”).
147. See supra note 32 and accompanying text.
148. This problem is considered from the standpoint of international standards as well as the practice
of a number of states in STRIKING A BALANCE: HATE SPEECH, FREEDOM OF EXPRESSION AND NONDISCRIMINATION (Sandra Coliver ed., 1992).
149. U.N. Hum. Rts. Comm., General Comment No. 11, ¶ 2, U.N. Doc. HRI/GEN/1/Rev.6 (May 12,
2003). Similar determinations are found in General Recommendation XV(42) of the Committee on the
Elimination of Racial Discrimination, reprinted in U.N. Doc. A/42/18 (Jan. 1, 1987), and in the U.N.
Econ. & Soc. Council, Comm’n on Hum. Rts., Promotion and Protection of the Right to Freedom of Opinion and
Expression, ¶ 45, U.N. Doc. E/CN.4/1995/32 (Dec. 14, 1994) (prepared by Abid Hussain).
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opinions and speech are protected categorically, without regard to content.
Thus, the right to engage in propaganda for war is as protected as the right
to advocate pacifism, and the advocacy of hatred as protected as the advocacy
of fellowship.”150 Under U.S. law, even in the case of speech posing a “clear
and present danger” to public order, the government must establish that
such speech is “intended to incite or produce imminent lawless action and is
likely to achieve that end,” or constitute words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”151
Thus, the First Amendment permits the limitation of expression intended,
and likely, to result in imminent violence but not in the case of the incitement to discrimination or hostility or expression not likely to result in imminent violence. This is a considerably narrower limitation on expression
than that set out in article 20(2).
The case of Faurisson v. France provides a useful illustration of these two
conceptions of incitement. Here, France defended before the Human Rights
Committee the application of its criminal law to certain Holocaust deniers.
The Gayssot Act made it a criminal offense to contest the existence of crimes
against humanity as found by the Nuremburg Tribunal. In finding that the
applicants’ rights to freedom of expression were not violated, the Committee
accepted the French government’s argument that “racism did not constitute
an opinion but an aggression, and that every time racism was allowed to
express itself publicly, the public order was immediately and severely
threatened.”152 In the absence of explicit incitement, several members of the
Committee justified this decision by suggesting that this was a case where
in a particular social and historical context, statements that do not
meet the strict legal criteria of incitement can be shown to constitute
part of a pattern of incitement against a given racial, religious or national
group, or where those interested in spreading hostility and hatred
adopt sophisticated forms of speech that are not punishable under the
law against racial incitement, even though their effect may be as pernicious as explicit incitement, if not more so.153
Here again, we can observe the powerful role that the background conditions of history and inter-group relations (especially in terms of the rights
and vulnerabilities of minority groups) can play in attempting to resolve
conflicts between claims of right. Indeed, it may be the very different histories and understandings of religious and cultural nationalism that best explain the differences in approach to permissible limitations on hate and
150. U.N. Hum. Rts. Comm., Consideration of Reports Submitted by States Parties Under Article 40 of the
Covenant, ¶ 597, U.N. Doc. CCPR/C/81/Add.4 (Aug. 24, 1994) (U.S.).
151. Id. ¶ 590 (citing Brandenburg v. Ohio, 395 U.S. 444 (1969) and Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)).
152. U.N. Hum. Rts. Comm., Report of the Human Rights Committee: Volume II, annex VI, Communication No. 550/1993, ¶¶ 7.3, 9.7, U.N. Doc. A/52/40 [VOL.II] (SUPP) (Nov. 8, 1996).
153. Id. ¶ 4 (Evatt & Kretzmer, concurring) (emphasis added).
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other extremist speech in Europe and the United States. Similarly, these
same factors may provide the best explanations for the current impasse between the “West” (broadly defined as including Europe and the United
States) and the “Islamic world” on the question of how to resolve conflicts
between free speech and the demands of religious sanctity.
a. The Danish Cartoons Controversy
Let me illustrate these two assertions by considering briefly the response
to the Danish cartoons affair in the United States, Europe, and predominantly Muslim countries respectively. In the United States, consistent with
the Enlightenment premises of the American Constitution, the weight of
legal opinion has been in favor of free speech against any countervailing
right to freedom of religion, and in favor of the individual right to expression against any countervailing group or minority rights to be free from
discrimination, hostility, or violence.154 In Europe, however, there has generally been a greater sensitivity shown to these countervailing factors and a
genuine (albeit inconclusive) attempt to reconcile the competing claims of
right at issue with regard to both the historical context of European intergroup relations and the relevant international human rights instruments.155
By contrast, in the vast majority of Islamic states there has been a consensus
that the cartoons are part of a wider pattern of discrimination and hostility
toward Muslims in Europe in particular and are defamatory of Islam in general.156 On the grounds that defamation of religions is inconsistent with the
right to freedom of expression, the Organization of the Islamic Conference
has recently called for “legally-binding” U.N. resolutions to “prevent defa154. See, e.g., Steve Edwards, On the Right to Give Offence, POLICY, Spring 2006, at 33, 35 (on the basis
of the “axiom of classical liberalism” that “no-one may initiate force or the threat of force against anyone
else,” arguing that to “ ‘compromise’ freedom of expression by erecting statutory guard-posts around a
bundle of unproven and unfalsifiable assertions is to assault the very foundations of science, logic and
rationality”) (emphasis omitted); Post, supra note 78, at 84 (concluding that the Danish cartoons are
“rather far from legally prohibited hate speech” as they, inter alia, take a position on issues of “obvious
public moment,” do not “advocate discrimination or oppression or violence,” and “do not portray Muslims as without human dignity”); Barbara Smoker, Should We Respect Religion?, FREE INQUIRY, Oct./Nov.
2006, at 27, 30 (relying on the Millian argument for free speech as the pursuit of truth and arguing that
“[f]ar from being willing to moderate free speech by respect for religion, we should moderate respect for
religion in favor of free speech”).
155. See, e.g., Boyle, supra note 5, at 188, 191 (noting that freedom of religion is both an individual
and a collective right and arguing for a “long-term approach to the elimination of religiously motivated
hatred and discrimination” requiring both believers and nonbelievers to “seek harmony between these
freedoms in practice, not one that a priori privileges one over the other, whether it is freedom of expression or freedom of religion”); Paul Sturges, Limits to Freedom of Expression? Considerations Arising from the
Danish Cartoons Affair, 32 IFLA J. 181 (2006) (analyzing the cartoons controversy in terms of both
ICCPR and ECHR provisions). See also Susannah C. Vance, The Permissibility of Incitement to Religious
Hatred Offenses under European Convention Principles, 14 TRANSNAT’L L. & CONTEMP. PROBS. 201 (2004).
156. See, e.g., A. Sivanandan, Freedom of Speech Is Not an Absolute, RACE & CLASS, July 2006, at 76–77
(arguing that racism in Europe is “particularly and violently directed at Muslims today” and that freedom of speech cannot be used to “endanger other people’s lives by incitement to racial, ethnic or religious hatred”).
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mation of religion and prophets” and to “render all acts whatsoever defaming Islam as ‘offensive acts’ and subject to punishment.”157
The eclectic, value pluralist nature of the European position is the approach most consistent with the thesis of this Article. By considering both
the individual and collective interests protected by the right to freedom of
religion, we begin to see the unarticulated major premises and particulars
masquerading as universals in First Amendment discourse. This is evident
in Robert Post’s analysis of the cartoon controversy. Post identifies three
possible state interests justifying legal suppression of the cartoons—the suppression of blasphemy, the protection of religious groups, and the prevention of discrimination—and ultimately dismisses each one. In order to see
why exactly he dismisses them, let us consider each of his arguments in
turn.
The first of such interests is the suppression of blasphemy. In seeking to
resolve the “contradiction between keeping public discourse open to all
opinions and excluding from public discourse those who would deny what a
particular religion regards as sacred,” Post concludes that in restricting such
speech the “state loses democractic legitimacy with respect to those who do
not believe in the truths protected by a law of blasphemy.”158
As a normative matter, however, why should democratic self-governance
as a justification for protecting free speech take precedence over the intrinsic
value of respect for religions and religious belief? Does the state not thereby
risk losing its legitimacy with respect to those with sensitive and communal
religious convictions? Nothing in the Covenant on Civil and Political
Rights supports the view that article 19 is necessarily hierarchically superior
to article 18 and, conversely, article 20(2) in fact requires states to prohibit
by law advocacy of religious hatred rising to the level of inciting discrimination, hostility or violence. Furthermore, many democratic states, such as the
United Kingdom, maintain laws prohibiting blasphemy that have been upheld by the European Court as compatible with article 10 of the ECHR.
Why, then, does Post so easily assume the priority of free speech and its
associated justification of democractic legitimation?
The answer, I believe, lies in Post’s rejection of the second possible state
interest in suppression—the protection of religious groups. Post criticizes
the logic of the European Court’s statement in Otto Preminger Institute v. Austria that “persons have a right not to be insulted in their religious beliefs
157. On Eliminating Hatred and Prejudice Against Islam, Islamic Conference of Foreign Ministers,
33d Sess., June 19–21, 2006, Res. No. 26/33-P. Note that fifty-seven member states of the OIC have
had longstanding concerns regarding the “defamation of religions.” The U.N. Human Rights Commission has passed resolutions annually since 1999 on combating defamation of religions. See U.N. Econ. &
Soc. Council, Comm’n on Hum. Rts., Report to the Economic and Social Council, Res. 2005/3, U.N. Doc. E/
CN.4/2005/L.11/Add.1 (Apr. 12, 2005).
158. Post, supra note 78, at 78.
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because offense of this kind inhibits the right to practice a religion.”159 Such
a rationale excludes from public discourse those whose convictions are offensive to religious groups. The difficulty for Post is the notion of toleration
that lies at the heart of the Court’s attempt to balance the competing interests. In response to the Court’s assertion that a “spirit of tolerance must be a
feature of democratic society,” Post replies that “democracy does not require
toleration in the sense that persons abandon their independent evaluation of the
beliefs and ideas of others”; otherwise, “[t]o the extent that democracy suppresses my expressions of disapproval or condemnation for the actions of
groups that I dislike, it excludes me from the formation of public
opinion.”160
While defensible in a particular constitutional or philosophical tradition,
this proposition rests on an underlying bias that cannot simply be assumed
as a matter of international law. Individual freedom of thought, conscience,
and expression, justified on Enlightenment rationalist and secular modernist
grounds, is the dominant value in Post’s normative scheme. Freedom of religion, however, is compatible with this view primarily to the extent it is
understood to encompass an inviolable private or inner realm of “belief”—
the so-called forum internum discussed earlier—separate from manifestations
of that belief.161 On this view you may believe in any prophet or religion
you wish, provided you do not manifest your beliefs in such a way as to
restrict the rights of others to believe (or not to believe) or express (or not to
express) themselves as they choose. The difficulty with this argument is that
it relies on a prior contingent assumption equating religion with belief. This
may be less problematic in a strongly immigrant and Christian society such
as the United States (although even here the assumption is inherently problematic).162 But in contexts where religion and state have different historical
configurations and where ascriptive religious identities define the differences
between majority and minority national groups, this simply will not work.
159. Id. at 79; see Otto Preminger Inst. v. Austria, App. No. 13470/87, 295 Eur. Ct. H.R. (ser. A) 6,
18 (1994) (stating that “in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold
and express them”); see also Wingrove, 24 Eur. H.R. Rep. 1 (upholding censorship of a film showing a
Catholic saint in a state of sexual ecstasy).
160. Post, supra note 78, at 79–80 (emphasis added).
161. See supra note 42 and discussion on the belief-action distinction. The point is not that free
exercise of religion is not protected, but that the scope of limitations on the manifestation of religious
beliefs will depend on the theory of religious toleration employed. Note, for example, the uncertainty
following the Supreme Court’s decision in Employment Division v. Smith regarding the scope of religious
toleration in cases involving the enforcement of formally neutral, general laws that burden the free exercise of religion. See, e.g., Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 547 (1993).
The real question is the extent to which the state recognizes a limited sphere of collective autonomy. See
Cover, supra note 133, at 31–32 (arguing that the idea of “associational self-realization in nomian terms”
tacitly underlies the Court’s famous decision in Wisconsin v. Yoder, 406 U.S. 205 (1972)).
162. See Danchin, supra note 16, at Part III.D (discussing two competing conceptions of liberal nationalism in First Amendment jusrisprudence).
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Once the right to freedom of religion is understood to include the communal, public, and sensitive aspects of religions such as Islam, Post’s argument collapses and the need arises to engage with a genuine conflict of
interests internal to the right itself. Why, for example, should Post’s assumption not now be reversed, as many representatives of Islamic states have
urged, and the right peacefully to manifest one’s religion be regarded as the
dominant value? On this view, freedom of thought and opinion remains
absolutely protected, but manifestations of that opinion are now open to limitation to the extent they incite discrimination, hostility, or violence toward
religion. The fraught task of calibrating the respective rights and interests
now resumes, for example, in undertaking to draw the line between speech
that is “gratuitously offensive” and speech that, though offensive, contributes to “any form of public debate capable of furthering progress in human
affairs.”163 But while the heremeneutic difficulties remain, the method and
mode of reasoning has shifted. It is now respect for the intrinsic value of
religious belief and practice that provides the unspoken background and
tacit starting point for the ensuing rights discourse.
Consider the implications of this argument in the context of Post’s rejection of the third possible state interest in suppression—the prevention of
discrimination. Post suggests that states have an interest in preventing discrimination against Muslims but that this objective is “distinct from the
interest in prohibiting and preventing speech that Muslims find offensive.”164 The line to be drawn is according to the version of Mill’s harm
principle articulated in Brandenburg v. Ohio: content-based restrictions on
speech are not permissible unless the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”165 But what is the conception of “harm” being deployed here? Why
should imminent violence be the correct standard as opposed to, say, the
article 20(2) standard of inciting racial or religious discrimination and hostility? Furthermore, whose harm is at issue here? Is it the harm caused by
suppressing speech or the harm caused by the speech itself that is our critical
concern? As suggested by Stanley Fish, whose ox exactly is being gored?166
163. This distinction is drawn by the European Court in Otto Preminger Inst., 295 Eur. Ct. H.R. at 19.
Post notes that the distinction between the style and substance of speech is what underlies British law on
blasphemous libel that permits anything to be said so long as the “decencies of controversy are observed.” Post, supra note 78, at 80 (internal quotation marks omitted).
164. Post, supra note 78, at 82.
165. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
166. STANLEY FISH, THERE’S NO SUCH THING AS FREE SPEECH: AND IT’S A GOOD THING, TOO 104
(1994). Fish’s argument is that speech is “never a value in and of itself but is always produced within the
precincts of some assumed conception of the good to which it must yield in the event of conflict.” Id. His
larger point is that liberal theories of free speech derive from Enightenment rationalism: a “faith (a word
deliberately chosen) in reason as a faculty that operates independently of any particular world view.” Id.
at 134. However, this is in itself a world view that works to shape the debate carried on within its
influence. Thus, persons embedded in “different discursive systems”—such members of religious traditions who privilege faith over reason and thus deny the fundamental premise of liberalism, as I suggest
here—will be marginalized within an ideological system that, while claiming to treat all truth claims
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As we shall see in Part IV below, different states in different parts of the
world, each with its own unique history and constitutional settlements, continue to struggle with these questions and reach different forms of accommodation of the rights claims at issue. Once the concept of religion is
viewed in the strongly pluralist terms demanded by international law rather
than in solely Enlightenment rationalist terms, and once the collective interests
that the right to freedom of religion protects are brought explicitly back
into the analysis as opposed to focusing solely on individual autonomy, notions such as “discrimination” and “harm” lose the self-assuredness they
assume in Post’s hands, and become once again essentially-contested concepts within divergent religious and cultural nomian spheres. If correct, this
argument has profound implications for any mapping of individual toleration in international law.167
b. Blasphemy and a Dominant Religion
The second and final observation I wish to make concerns an additional
feature of blasphemy laws that adds a further complicating factor to this
analysis. This is the fact that blasphemy laws do not necessarily protect all
individuals or groups from injury to religious feelings but extend protection
in general only to the established or dominant religious group. The English
common law offense of blasphemous libel, for example, has been held by the
British courts not to extend to all religions but to cover only the Church of
England and, in some respects, Christianity as a whole.168 The rationale for
the limited scope of the offence is related to the historical relationship between the state and the (Protestant Christian) nation in Britain. Still today,
the Anglican Church of England and the Presbyterian Church of Scotland
remain officially “established” and retain various privileges and immunities
under British law. Thus, as stated in R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury (the “Salman Rushdie” case):
Indeed, all offences of this kind are not only offences to God, but
crimes against the law of the land, and are punishable as such, inasmuch as they tend to destroy those obligations whereby civil society is
bound together; and it is upon this ground that the Christian religion
constitutes part of the law of England . . . .169
equally, is in fact centered around the primacy of a particular “foundationalist” eighteenth-century conception of Reason whose ascendancy in the West is itself the product of contingent historical forces and
political struggles.
167. See infra Part V.
168. See, e.g., Gay News Ltd. v. United Kingdom, App. No. 8710/79, 5 Eur. H.R. Rep. 123 (1983).
In R. v. Lemon, 1 All E.R. 898, 921 (1979) (U.K.), Lord Scarman criticized blasphemous libel at common
law on the grounds that it did not extend to “protect the religious beliefs and feelings of non-Christians”
(which was necessary in an “increasingly plural society such as that of modern Britain”) but rather
belonged to a “group of criminal offences designed to safeguard the internal tranquility of the kingdom.”
169. R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury, 1 All E.R. 306, 313 (Q.B.
1991) (quoting R. v. Williams, 26 State Tr. 654, 714 (1797)). In this case, concerning Salman Rushdie’s
The Satanic Verses, the Court declined to extend blasphemous libel to cover other religions. Id. at 306. The
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The identification of those “obligations whereby civil society is bound together” with a particular religious tradition accordingly raises complex
questions of the background relationship between the state and different
conceptions both of nationalism and of the equality of religious minorities,
relating to treatment and rights. It is to such questions of religious freedom
as it “actually exists” in the constitutional arrangements of different countries around the world that we now turn.
IV. ACTUALLY EXISTING RELIGIOUS FREEDOM
Although often overlooked in discussions of this kind, what I term the
“cultural function” of the nation-state has particular importance for our understanding of the nature and limits of the right to freedom of religion and
belief.170 This is because the cultural and historical traditions of national
groups have been shaped, to varying degrees, by particular religious traditions.171 Even a cursory review of the basic forms of the relationship of the
state to religion(s) in national constitutions reveals a great plurality of arrangements in actually existing nation-states around the world—a veritable
patchwork of dispensations and disparate forms of overlapping consensus
seeking to reconcile the particular historical and factual circumstances of the
state with the norm of freedom of religion and belief.
Of course, as Krishnaswami reminds us, the constitutional form that the
relationship between religion and the state takes is not itself a conclusive
prediction of the extent to which rights related to religion and belief are
protected in any country:
[T]he mere fact that a country falls into one of the three categories [of
established church/state religion, recognition of several religions, or
separation of state and religion] is not in itself a sufficient basis upon
which to determine whether or not discrimination with respect to freedom of thought, conscience and religion exists in that country. It is
necessary to probe more deeply into the actual situation in each case in
order to reach a conclusion on this matter.172
Thus, it is important to realize that, as a general matter, the extent of religion-state identification does not necessarily correlate in a linear fashion with
case went to the European Commission, which determined that the restricted protection provided by the
English blasphemy law was not discrimination on the basis of religion in violation of articles 9 and 14 of
the European Convention. See Choudhury v. United Kingdom, App. No. 17439/90, 12 HUM. RTS. L.J.
172–73 (1991).
170. For a comprehensive argument that freedom of religion should be “reconstructed” as “a special
case of the right to culture” and should thus be defined as a “minority rights requirement,” see Gidon
Sapir, Religion and State—A Fresh Theoretical Start, 75 NOTRE DAME L. REV. 579, 625–45 (1999).
171. See, e.g., YAEL TAMIR, LIBERAL NATIONALISM (1993). For detailed discussion of the relationship
between religion and national self-determination, see Danchin, supra note 16, at Parts II–III.
172. Krishnaswami Study, supra note 14, at 48.
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the extent of religious freedom in any particular model of religion-state relationship. As Durham has observed, “both strong positive and strong negative identification of church and state correlate with low levels of religious
freedom. In both situations, the state adopts a sharply defined attitude toward one or more religions, leaving little room for dissenting views.”173
Both absolute theocracies and radically secularist regimes (such as those that
existed under official Communist atheism) correspond with a low level of
religious liberty, especially for minority religions.174 There can also be substantial differences between constitutional texts and actual practices. Constitutions are primarily aspirational documents, and the legal effect in practice
of any constitutional principle or norm may vary from the actual text. In
addition, states with similar constitutional provisions may place significantly different interpretations on those provisions.175
In what follows, I set out some of the basic forms of recognition of the
relationship of the state to religion in national constitutions. My aim in
doing so is to illustrate the tremendous variety of constitutional arrangements existing in the world regarding religion, and accordingly the diversity of contexts in which laws restricting proselytism arise for consideration.
This great pluralism in normative settlements both within and between different ways of life lays the groundwork for the final argument in Part V
concerning the need for a shift toward value pluralism as an account of religious freedom in international law.
A. Religion and State in National Constitutions
Some constitutions recognize no particular relationship between religion
and the state and contain provisions that generally follow the language of
international instruments.176 In other constitutions, a dominant religion is
specifically mentioned, albeit in the context of other religions. For example,
the 1978 Spanish Constitution provides:
Article 16
1. Freedom of ideology, religion and cult of individuals and communities is guaranteed without any limitation in their demonstrations other
than that which is necessary for the maintenance of public order protected by law.
173. W. Cole Durham, Jr., Perspectives on Religious Liberty: A Comparative Framework, in RELIGIOUS
HUMAN RIGHTS IN GLOBAL PERSPECTIVE: LEGAL PERSPECTIVES, supra note 14, at 18.
174. See, e.g., id. at 19.
175. For example, the establishment clauses in the Australian and U.S. constitutions, although
worded in similar terms, have been interpreted quite differently by the courts in each country. See, e.g.,
PETER BAILEY, HUMAN RIGHTS: AUSTRALIA IN AN INTERNATIONAL CONTEXT 97 (1990) (observing that,
in Attorney-General for Victoria Ex Rel Black v. Commonwealth, 146 C.L.R. 559 (1981) (the “DOGS case”),
the Australian High Court “departed from the ‘strict separationist’ view being applied at the time of
Federation by the United States Supreme Court, in favor of a ‘non-preferential’ or middle view”).
176. See, e.g., S. AFR. CONST. 1996 arts. 9(3), 15, 16(2)(c), 31.
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2. No one may be obliged to make a declaration on his ideology, religion or beliefs.
3. No religion shall have a state character. The public authorities shall
take into account the religious beliefs of Spanish society and shall consequently maintain the appropriate cooperation with the Catholic
Church and other confessions.177
It is not apparent from these provisions what significance, if any, the particular mention of the Catholic Church might have, as no privileges or differential treatment are explicitly indicated. However, in its agreements with
the Holy See structuring the relationship between the Spanish state and the
Catholic Church, it is recognized that the Spanish legal code provides for
“norms appropriate to the fact that the majority of the Spanish people profess the Catholic religion.”178 Thus, where mention of a particular religion is
the result of that religion’s dominant position in the national community,
specific legal norms and practices must be closely examined for differential
treatment of other religious communities. Indeed, in Spain, the Catholic
Church retains certain privileges not granted to other religious
communities.179
In some constitutions, a particular religion is identified as the religion of
the state or as the “established” religion. Certain special treatment or privileges may be provided for in connection with this recognition. One example
of this type of recognition (ironically, given the discussion in Part III.B.3
above) is the Constitution of Denmark, which provides:
Section 4
The Evangelical Lutheran Church shall be the Established Church of
Denmark, and, as such, it shall be supported by the State.
Section 6
The King shall be a member of the Evangelical Lutheran Church.
177. CONSTITUCIÓN [C.E.] art. 16 (Spain), translated in 17 CONSTITUTIONS OF THE COUNTRIES OF THE
WORLD (Gisbert H. Flanz ed., 2006) [hereinafter CONSTITUTIONS OF THE WORLD]; see also CONSTITUTION OF THE REPUBLIC OF MACEDONIA art. 19, translated in 11 CONSTITUTIONS OF THE WORLD (specifically mentioning the Macedonian Orthodox Church).
178. Agreement of July 28, 1976, Spain-Holy See, Aug. 19, 1976, B.O.E. No. 230, pmbl., reprinted
in RELIGION AND HUMAN RIGHTS: BASIC DOCUMENTS 237 (Tad Stahnke & J. Paul Martin eds., 1998). I
am grateful to Tad Stahnke for helpful conversations on these issues. The discussion in this and the
following section on constitutions in predominantly Muslim states draws extensively on his early research
and work in this area.
179. See, e.g., Tad Stahnke, Equality and Religious Preferences: Theoretical, International and Religious Perspectives, in PROTECTING THE HUMAN RIGHTS OF RELIGIOUS MINORITIES, supra note 42, at 87. Stahnke
notes that there are four primary agreements between Spain and the Holy See, which set out various
privileges and benefits (on general matters, legal affairs, education and cultural affairs, and economic
affairs). Spain has also concluded agreements with the Federation of Evangelical Religious Entities of
Spain, the Islamic Commission of Spain, and the Federation of Israelite Communities of Spain. See also
Gloria Moran, The Spanish System of Church and State, 1995 BYU L. REV. 535.
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Section 66
The constitution of the Established Church shall be laid down by
Statute.180
B. Pluralism in Islamic Constitutions
Many predominantly Muslim states contain similar provisions with respect to Islam. There is, however, great diversity across the Muslim world as
to the constitutional arrangements dealing with the role of Islam and the
scope of the right to freedom of religion or belief.181 As Stahnke and Blitt
observe, from among fourty-four predominantly Muslim countries, ten declare themselves to be “Muslim states”;182 twelve declare Islam to be the
“official state religion”;183 eleven declare themselves to be “secular
states”;184 and eleven make no constitutional declaration concerning the Islamic or secular nature of the state.185 Within all these states today, discussions are ongoing concerning the appropriate constitutional role for Islam,
the scope and limits of the right to freedom of religion and belief, and the
application of rights to equality and nondiscrimination.
A striking recent example of this dynamic is the post-2003 Iraqi constitution, approved in 2005. Under article 2(1), Islam is declared to be the
“official religion of the State” and a “fundamental source of legislation,”
while no law that “contradicts the established provisions of Islam may be
established.” Article 2(2) further states that “[t]his Constitution guarantees
the Islamic identity of the majority of the Iraqi people and guarantees the
full religious rights of all individuals to freedom of religious belief and practice such as Christians, Yazedis, and Mandi Sabeans.” At the same time,
article 14 provides that “Iraqis are equal before the law without discrimination based on . . . religion, creed, belief or opinion . . . .”186
In such cases where a national constitution recognizes—either explicitly
or implicitly—a religion as having the character of a state or established
religion, two basic problems can arise. First, such recognition may result in
180. CONSTITUTION OF THE KINGDOM OF DENMARK §§ 4, 6, 66, translated in 5 CONSTITUTIONS OF
WORLD, supra note 177. Other provisions of the Danish Constitution recognize religious freedom
and some measure of equality with respect to religion and religious communities. See id. §§ 67–70.
181. Tad Stahnke & Robert C. Blitt, The Religion-State Relationship and the Right to Freedom of Religion
or Belief: A Comparative Textual Analysis of the Constitutions of Predominantly Muslim Countries, 36 GEO. J.
INT’L. L. 947 (2005).
182. Those countries are Afghanistan, Bahrain, Brunei, Iran, Maldives, Mauritania, Oman, Pakistan,
Saudi Arabia, and Yemen. Id. at 954–55 tbl.
183. Algeria, Bangladesh, Egypt, Iraq, Jordan, Kuwait, Libya, Malaysia, Morocco, Qatar, Tunisia, and
United Arab Emirates. Id. at 955 tbl.
184. Azerbaijan, Burkina Faso, Chad, Guinea, Kyrgyzstan, Mali, Niger, Senegal, Tajikistan, Turkey,
and Turkmenistan. Id.
185. Albania, Comoros, Djibouti, The Gambia, Indonesia, Lebanon, Sierra Leone, Somalia, Sudan,
Syria, and Uzbekistan. Id.
186. CONSTITUTION OF THE REPUBLIC OF IRAQ (2005) art. 14, translated in 9 CONSTITUTIONS OF THE
WORLD, supra note 177.
THE
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differential treatment of, and possible discrimination against, persons belonging to other religions or to no religion. This differential treatment may
be confined to religious matters—as, for instance, differential limitations on
the freedom to manifest religion or belief in cases such as proselytism or
differential funding of religious institutions—or may affect the equal protection of other civil or political rights. Second, because the structure and
rules of the institutions of the state or established religion are frequently set
down by law and those institutions have a state character, there is the danger
that the freedom of religion of persons belonging to that religion will be
subject to greater state interference than would be true in nonstate
institutions.
The U.N. Human Rights Committee and the European Commission have
both indicated that the existence of a state or established religion is not in
itself a violation of the right to freedom of religion, but does raise certain
potential problems. The Human Rights Committee has commented that:
The fact that a religion is recognized as a state religion or that it is
established as official or traditional or that its followers comprise the
majority of the population, shall not result in any impairment of the
enjoyment of any of the rights under the Covenant, including articles
18 and 27, nor in any discrimination against adherents of other religions or non-believers. In particular, certain measures discriminating
against the latter, such as measures restricting eligibility for government service to members of the predominant religion or giving economic privileges to them or imposing special restrictions on the
practice of other faiths, are not in accordance with the prohibition of
discrimination based on religion or belief and the guarantee of equal
protection under article 26.187
At least ten of the countries discussed above, however, provide that Islam
has a fundamental role in the form and function of the state and society
greater than recognition as the state or established religion. An example of
this is the 1979 Constitution of Iran. The Iranian Constitution explicitly
recognizes not only that Islam is the religion of the state, but also that
“[t]he form of government of Iran is that of an Islamic Republic.”188 The
principles on which an Islamic Republic rests include belief in “the One
God (as stated in the phrase . . . ‘There is no god except Allah’), His exclu-
187. General Comment No. 22, supra note 22, ¶ 9. In a case involving Sweden, the European Commission stated that the existence of a state church was not incompatible with article 9 of the European
Convention, as long as the state church system included safeguards to protect an individual’s freedom of
religion, including no compulsion to join the state church and the freedom to leave. Darby v. Sweden,
App. No. 11581/85, 187 Eur. Ct. H.R. (ser. A) ¶ 45 (1990) (Comm’n Rep. Annex at 17–18).
188. Qanuni Assassi Jumhuri’i Isla’mai Iran [The Constitution of the Islamic Republic of Iran] 1358
[1980] art. 1, translated in 9 CONSTITUTIONS OF THE WORLD, supra note 177.
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sive sovereignty and the right to legislate, and the necessity of submission to
His commands.”189 As a result, all laws must conform to Islamic criteria.190
The scheme of recognition of religious communities set out in the Iranian
Constitution generally conforms to traditional Islamic criteria. According to
article 12, “[t]he official religion of Iran is Islam and the Twelver Ja’farı̂
school,” while other schools of Islam enjoy “official status” in regards to
religious education and personal status law.191 The rights of religious minorities are set out in article 13:
Zoroastrian, Jewish and Christian Iranians are the only recognized religious minorities, who, within the limits of the law, are free to perform their religious rites and ceremonies, and to act according to their
own canon in matters of personal affairs and religious education.192
The form of relationship mentioned above implicates the problems of differential treatment with respect to the recognition of a state or established
religion. It also illustrates problems related to the submission of all persons,
regardless of their religion or belief, to a political, social, and legal system
purported to be based solely on the tenets of one religion.193
On the other hand, some constitutions within predominantly Muslim
countries recognize the separation of religion and religious communities
from the state. Additional provisions in some such constitutions establish
secularism as a constitutional principle. In furtherance of secularism, such
provisions may address the social place of religion and may explicitly curtail
the political activities of religions. A prominent example of these types of
provisions is the constitution of Turkey. In the preamble of the constitution,
it is stated that its provisions are to be “understood, interpreted and implemented” in light of certain basic principles, including
the determination that no activity can be protected contrary to Turkish
national interests, the principle of the indivisibility of the existence of
Turkey with its state and territory, Turkish historical and moral values
189. Id. art. 2.
190. Id. art. 4 (“All civil, penal, financial, economic, administrative, cultural, military, political, and
other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations, and the fuqaha’ of the
Guardian Council are judges in this matter.”).
191. Id. art. 12.
192. Id. art. 13. Non-Muslims must be treated “in conformity with ethical norms and the principles
of Islamic justice and equity, and to respect their human rights.” Id. art. 14. The rights to freedom of
religion or protection from discrimination on the basis of religion are not expressly recognized in the
Iranian Constitution, although articles 23 and 26 provide certain limited protections. Id. arts. 23, 26.
193. See, e.g., ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS: TRADITION AND POLITICS 83–97
(1999) (examining Islamic law, especially discrimination against women and non-Muslim minorities, in
terms of international human rights standards); see also CONSTITUTION OF THE KINGDOM OF SAUDI ARABIA pmbl., art. 1, translated in 16 CONSTITUTIONS OF THE WORLD, supra note 177 (stating that the
“Kingdom of Saudi Arabia is an Arab and Islamic sovereign state” whose religion is Islam and whose
constitution is the “holy Quran and the Prophet’s Sunnah”). Under article 23, the state “protects the
Islamic creed, carries out its sharia and undertakes its duty toward the Islamic call.” Id. art. 23.
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or the nationalism, principles, reforms and modernization of Atatürk
and that, as required by the principle of laicism, sacred religious feelings can in
no way be permitted to interfere with state affairs and politics.194
Furthermore, the ramifications of secularism are contained in the constitutional provisions on the right to freedoms of thought and faith, which state,
in part:
No one can be allowed to exploit or abuse religion or religious feelings,
or things held sacred by religion, in any manner whatsoever, for [the
purpose of] even partially basing the fundamental, social, economic,
political, and legal order of the state on religious tenets or for . . .
obtaining political or personal benefit and influence.195
Provisions of this kind are a reminder of Durham’s thesis that constitutional
dispensations of an explicitly anti-religious character may also correlate with
a negative impact on the recognition of rights related to religion and
belief.196
C. French and American Exceptionalism
Two of the most recognizable constitutions—and I would add historically
exceptional ones—on the question of religion and religious freedom are
those of France and the United States. These documents emerged from their
respective eighteenth-century revolutions and each enshrines Enlightenment
principles of individual liberty of conscience and separation of church and
state. The fundamental principles and laws of the French Republic state in
their preamble that “[t]he French People solemly affirm the laws and rights
of man and the citizen set down in the Declaration of Rights of 1789 and
the fundamental principles recognized by the laws of the Republic.”197 Article 2 of the 1958 French Constitution states that “France is a Republic,
indivisible, secular, democratic and social. It shall ensure the equality of all
citizens before the law, without distinction of origin, race, or religion. It
shall respect all beliefs.”198 While for many years the Catholic Church was
194. CONSTITUTION OF THE REPUBLIC OF TURKEY pmbl., translated in 18 CONSTITUTIONS OF THE
WORLD, supra note 177 (emphasis added).
195. Id. art. 24. This provision has recently been invoked by the Turkish Constitutional Court to
abolish the Turkish Welfare Party, a political party devoted to increasing the role of Islam in Turkish
society and the state. The case ultimately went to the European Court of Human Rights. See Refah Partisi
(The Welfare Party) v. Turkey, App. Nos. 41340/98 & 41342–44/98 (Grand Chamber 2003) (upholding
the dissolution as compatible with the ECHR despite the Refah Party being in government at the time,
its leader being prime minister, and the party having 4.3 million members).
196. Durham, supra note 173, at 12–25.
197. 1958 CONST. pmbl. (France), cited in FREEDOM OF RELIGION AND BELIEF: A WORLD REPORT
294–95 (Kevin Boyle & Juliet Sheen eds. 1997) [hereinafter FREEDOM OF RELIGION AND BELIEF].
198. Id. art. 2.
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accorded certain privileges and state support, in 1946, secularism or laı̈cité
was officially adopted in France as a constitutional principle.199
Like France, the United States is a constitutional democracy based on
respect for individual liberty as entrenched in a bill of rights. I do not wish
to discuss here the two religion clauses of the First Amendment to the U.S.
Constitution other than to note that the free exercise clause has generally
been interpreted to provide a robust conception of the freedom to manifest
religious belief.200 Needless to say, questions of equality and nondiscrimination on the basis of religion have generated a vast, labyrinthine jurisprudence as the Supreme Court has struggled to establish standards consistent
with the principles of liberal neutrality and separation of church and state.201
As I have argued elsewhere,202 this is unsurprising. The free exercise clause
has operated in this respect as a de facto form of value pluralism, employing
the doctrine of “substantive neutrality” to mediate between the religious
and secular spheres in such a way that the Court has been unable to bring
any regularity or coherence to establishment clause jurisprudence under the
Lemon test.203
D. Unwritten Constitutionalism
Final mention must be made of two nation-states that do not have written
constitutions: the United Kingdom and Israel. The United Kingdom—
199. The 1790 Decree by the National Assembly stated that the Assembly respected religion and was
linked to the Roman Catholic Church (which was the only religion supported by public funds) and that
the Assembly could not and ought not debate a motion on the Catholic religion that would continue to
receive the customary ecclesiastical privileges. It was only in 1905 that article 2 of the Laws of Separation
formally ended the privileged position held by the Catholic Church stating that “[t]he Republic does not
recognize, remunerate or subsidise any religion.” See FREEDOM OF RELIGION AND BELIEF, supra note 197,
at 295. The 1905 laws were the result of a complex compromise between the Catholic Church and other
religious and non-religious groups. Note, however, that in the regional departments of Bas-Rhin, HautRhin, and Moselle, certain pre-1905 regulations continue to distinguish between recognized (Catholic
Church, Lutheran Church of the Augsburg Confession, Reformed Church, and Judaism) and non-recognized religions (Islam, Orthodoxy, certain independent Protestant churches, and various new religious
movements). Id.
200. U.S. CONST. amend. I. For an overview of the vast jurisprudence of the United States Supreme
Court on issues related to freedom of religion, see Carl H. Esbeck, A Restatement of the Supreme Court’s Law
of Religious Freedom: Coherence, Conflict, or Chaos?, 70 NOTRE DAME L. REV. 581 (1995); Douglass Laycock,
A Survey of Religious Liberty in the United States, 47 OHIO ST. L.J. 409 (1986).
201. The establishment clause prohibits the state from influencing, forcing, or punishing a person for
having, professing, or otherwise manifesting particular religious beliefs. This prohibition echoes the international human rights principle that there shall be no coercion with respect to the freedom to have or
to adopt a religion. Particular problems have arisen, however, involving indirect government influence on
religious beliefs through what could be perceived as the endorsement by the state of particular religious
expressions. Cases of this type include the display of religious symbols on government property and the
recitation of religious prayers or benedictions at public events. See, e.g., Lee v. Weisman, 505 U.S. 577
(1992).
202. See Danchin, supra note 16, at Part III.D.
203. The Lemon test has three prongs: “First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the
statute must not foster ‘an excessive government entanglement with religion.’ ” Lemon v. Kurtzman, 403
U.S. 602, 612–13 (1971).
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composed of the four “nationalities” of England, Scotland, Wales, and
Northern Ireland—not only has no written constitution or bill of rights,
but, until its recent incorporation of the European Convention on Human
Rights into domestic law, it has lacked any systematic statement or body of
legal or constitutional protection for religious liberty or against religious
discrimination. The gradual transition from a “confessional state” to a religiously plural society has occurred through periodic legislative reform of a
web of discriminatory laws against Catholics, Jews, and Protestant nonconformists, and through the common law decisionmaking of the courts.204 As
noted in the discussion on blasphemous libel,205 however, the (Anglican)
Church of England and the (Presbyterian) Church of Scotland remain officially “established” and retain various privileges and immunities under
British law.206
A broadly similar, but greatly more complex, relationship between nation-state and religion exists in Israel. In the absence of a written constitution, there is no express constitutionally guaranteed state-religion
relationship, not only for Othodox and secular Jews but for all religions and
denominations, as well as nonbelievers. The 1948 Declaration of Independence provides that the state will “maintain equality of social and political
rights for all its citizens, irrespective of race, religion, or sex.”207 But, the
declaration also proclaims the state to be a “Jewish State in Eretz-Israel,”
willing to “open its doors to every Jew.”208 Israel’s Basic Law on Human
Dignity and Freedom, which has constitutional standing, states as its purpose to “protect human dignity and liberty in order to establish in a Basic
Law values of the State of Israel as a Jewish and democratic state.”209 The
religious-nationalistic structure of the state creates a need for the classification of citizens as either Jewish or non-Jewish for a large number of religious, social, and legal purposes.210 Furthermore, large areas of social life in
204. See FREEDOM OF RELIGION AND BELIEF, supra note 197, at 314–15. “Non-dominant groups were
allowed to find a place within a framework established by the terms, structures and character of mainstream Christianity. This situation has been described as one of ‘tolerant discrimination,’ a step away
from assimilationism but still not quite that pluralism which is conducted through dialogue and mutual
change on the basis of respect and acceptance.” Id. at 315.
205. See supra note 168 and accompanying text.
206. In England, the Archbishop of Canterbury is the highest ranking non-royal person. The sovereign, who is head of the established church, must be a member of the Church of England and, under the
1701 Act of Settlement, cannot marry a Catholic. The monarch appoints the bishops of the Church of
England on the advice of the prime minister who, by convention, chooses from two names nominated by
the church itself. The church takes the leading role in national and civic religious occasions. It is also
represented in the House of Lords (the non-elected chamber of the U.K. Parliament). See FREEDOM OF
RELIGION AND BELIEF, supra note 197, at 316. The Church of Scotland has played an ongoing role in
sustaining Scottish identity since the union between Scotland and England in 1707. Id. at 317.
207. Id. at 436.
208. Id.
209. Id.
210. The Law of Return (1950) grants any Jew in the world the right to settle in Israel and automatic
citizenship. The Nationality Act (1952) provides the basis for the determination of citizenship. It applies
different rules to the acquisition of Israeli nationality by Jews and non-Jews. Instead of the usual two
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Israel—personal status matters such as marriage and divorce,211 education,212 dietary laws, and days of rest,213 and women’s rights in certain areas,
for example214—are subject to autonomy regimes that establish a complex
system of religious and non-religious legal codes and courts. The very idea of
an “autonomy regime” of the kind found in states such as Israel represents
the attempt to institutionalize within a liberal nation-state the notion of
value pluralism.215
grounds of birthplace and consanguinity, Israel gives preferences to the latter with the result that a
person born in Israel does not receive citizenship on the basis of birthplace alone. Id. at 436–37.
211. Each recognized religious community in Israel has legal authority over its members in matters of
marriage, divorce, conversion, and inheritance, exercising this authority through Rabbinic Courts,
Shariah Courts, Druze Religious Courts, and Courts of the Christian Community. In matters of marriage
and divorce, religious courts have exclusive jurisdiction over Jewish citizens or residents of Israel. Thus,
Orthodox religious authorities (which do not recognize alternative movements in Judaism) have exclusive
control over marriage and divorce of all members of the Jewish community, whether or not they are
Orthodox. The Rabbinic Court Jurisdiction Law (Marriage and Divorce) (1953) therefore directly conflicts with individual religious freedom, as it requires non-Orthodox and secular Jews to accept Orthodox
religious law. Neither inter-religious nor civil (or non-Orthodox) marriage is therefore available in Israel.
Id. at 440.
212. The State Education Law provides that the “object of state education is to base elementary
education in the State on the values of Jewish culture and . . . on love of the homeland and loyalty to the
State and the Jewish people.” Id. at 438. There are two separate educational systems (Jewish and nonJewish), which enjoy full autonomy, and while non-Jews must study Jewish religion and history, Jewish
children are not required to study the Qur’an, the Gospels, or Arab history. Id.
213. According to the status quo agreement made between secular mainstream Zionists and the religious parties before the establishment of the state, the Sabbath is the official day of rest, with no public
transport allowed, and institutional kitchens must follow Jewish dietary laws. The national airline does
not fly on the Sabbath, television and radio broadcasting on Yom Kippur is banned, and under the 1994
Frozen Meat Law, non-kosher meat cannot be imported. Id. at 428–29.
214. Women in Israel are subject to the personal status laws enforced by the various Jewish, Druze,
Christian, and Muslim religious courts. Many of these laws are in conflict with the equality and prohibition of discrimination against women norms in the Convention on the Elimination of All Forms of
Discrimination Against Women (“CEDAW”). See generally Sullivan, supra note 46, at 514–18. The combination of general state law (such as the Equality of the Sexes Act (1951) and the Equal Opportunity in
Employment Act (1982)) and personal status laws produces a complicated picture. Orthodox women, for
example, cannot become rabbis but may become judges (but not in a family court, where they may not
even be witnesses). FREEDOM OF RELIGION AND BELIEF, supra note 197, at 439–40.
215. In this respect, both autonomy regimes and legal recognition of religious and other “personal”
laws can be found in many other states, especially in Africa and Asia (for example, in Bangladesh, India,
Malaysia, Nigeria, Pakistan, South Africa, Sri Lanka, Tanzania, and Uganda). For an overview in the
context of Muslim personal laws, see Rashida Manjoo, The Recognition of Muslim Personal Laws in South
Africa: Implications for Women’s Human Rights (Harvard Law Sch. Human Rights Program, Working Paper, July 2007), available at http://www.law.harvard.edu/programs/hrp/documents/Manjoo_RashidaWP.
pdf. The legal recognition of shari’a law is also today becoming a contested issue in a number of Western
states. See, e.g., Marion Boyd, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion, Report
to the Attorney General of Ontario (Dec. 2004), available at http://www.attorneygeneral.jus.gov.on.ca/
english/about/pubs/boyd/ (reviewing whether Islamic principles of family and inheritance law could be
used to resolve disputes within the Muslim community in Canada and examining the Islamic Institute of
Civil Justice established to conduct arbitrations according to Islamic personal law); Rowan Williams,
Archbishop of Canterbury, Foundation Lecture at the Royal Courts of Justice: Civil and Religious Law in
England: A Religious Perspective (Feb. 7, 2008), available at http://www.archbishopofcanterbury.org/
1575 (noting that “[a]mong the manifold anxieties that haunt the discussion of the place of Muslims in
British society, one of the strongest . . . is that Muslim communities in this country seek the freedom to
live under sharia law” and exploring what “might be entailed in crafting a just and constructive relationship between Islamic law and the statutory law of the United Kingdom”).
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Israel, then, is a liberal nation-state, and its religion-state relationship
reveals the various contradictions of liberal nationalism. The unity of nation
and state—the realization of the right to national self-determination—is the
dominant principle. Liberal rights and democratic principles are recognized,
but only once the “boundedness” of the political community is secure. In
this respect, Israel is a “liberal” but not a “neutral” state. Its very purpose is
to ensure the survival of the Jewish people and to secure the public space to
ensure the flourishing of one (or a limited number of) unique religion(s),
set(s) of customs, and tradition(s). Furthermore, the non-neutral identity of
the state and the nature of the compromises forged between various religious
and secular groups in autonomy regimes ensure a corresponding recognition
(albeit not “equal recognition”) of the group rights of non-Jewish
minorities.
In conclusion then, the case of Israel, and indeed of all the countries discussed here, reveals two complex dimensions of the liberal tradition seemingly at odds with each other: the first, the pursuit of an ethical modus
vivendi seeking peaceful coexistence between rival ways of life; the second,
the assertion of a universal moral ideal claiming rational consensus on principles of right and justice that purports to stand apart from conflicts over
the good. Whether and how some form of reconcilation between these two
liberal projects may be sought is the question to which we now turn.
V. VALUE PLURALISM
AND
RELIGIOUS FREEDOM
The discussion in Parts III and IV presents daunting challenges to thinkers in the Lockean and Kantian traditions. The case of proselytism presents a
series of individual and collective interests that are “inherently rivalrous,
and often constitutively uncombinable, and sometimes incommensurable, or
rationally incomparable.”216 At the same time, the fundamental rights and
liberties of liberal thought allow no escape from the need to make radical
choices in which “reason leaves us in the lurch and in which, whatever we
do, there is a wrong or an irreparable loss of value.”217 What would it mean
to take these deep conflicts of value more seriously? What are the implications of a moral theory of value pluralism that recognizes an irreducible
diversity of ultimate values while at the same time denying the availability
of any overarching standard or Archimedean point to resolve conflicts both
within and between them? This is the challenge taken up in Part V.
216. GRAY, ENLIGHTENMENT’S WAKE, supra note 18, at 68.
217. Id. at 69. For Gray, agonistic liberalism is thus “an application in political philosophy of the
moral theory of value pluralism—the theory that there is an irreducible diversity of ultimate values
(goods, excellences, options, reasons for action and so forth) and that when these values come into conflict
or competition with one another there is no overarching standard or principle, no common currency or
measure, whereby such conflicts can be arbitrated or resolved.” Id. at 68–69.
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A. Incommensurable Values and the Problem of Compossibility
In the Kokkinakis case, we saw that the right to freedom of religion and
belief generates different types of conflicts not only between various individual and collective claims of right, but also more deeply between different
conceptions of individual and collective goods. This included conflicts not
only with other rights (such as freedom of expression) but also within the
right to religious liberty itself.218 This raises the disabling prospect that in
deciding which among a rival set of Rawlsian “basic liberties” is to be protected, and to what degree, we inescapably have to advance (controversial)
arguments about the good. This, of course, was exactly the problem that we
(and Rawlsians) had hoped to avoid. The Kantian algebra, in enshrining
certain principles as “fundamental rights,” was meant to avoid the intractable difficulties associated with making (subjective) judgments about different conceptions of the good.
The underlying difficulty, as a long line of political theorists have posited, is that claims of right and justice embody values that are themselves
incompatible and incommensurable.219 John Gray has identified three primary ways in which incommensurable values may arise. First, such values
can arise from conventions that govern moral life in particular cultures. Following Raz, such goods—say, for example, friendship and money—are not
strictly comparable as values but at the same time it is “part of the meaning
of some goods that they are not to be traded off against one another.”220
Second, incommensurable values can arise when the same good is differently
interpreted and embodied in different cultures. Courage and prudence are
generically “human” ethical values, but may be differently embodied in,
say, Christian or Islamic or Buddhist societies. And third, such values can
arise when different goods and virtues are recognized and honored in different cultures. Thus, the “ideals of life we find honoured across longer
stretches of history and in disparate cultures are irreducibly diverse; some of
them are necessarily discordant; and reasonable people do not converge on
any ranking of them.”221
218. See supra note 106 and accompanying text.
219. For the most recent philosophical literature on value pluralism and incommensurability, see
STUART HAMPSHIRE, MORALITY AND CONFLICT (1983); INCOMMENSURABILITY, INCOMPARABILITY AND
PRACTICAL REASONING (Ruth Chang ed., 1997); AVISHAI MARGALIT, THE DECENT SOCIETY (1996); JOSEPH RAZ, THE MORALITY OF FREEDOM (1986); BERNARD WILLIAMS, ETHICS AND THE LIMITS OF PHILOSOPHY (1985).
220. GRAY, TWO FACES OF LIBERALISM, supra note 107, at 35 (citing RAZ, THE MORALITY OF FREEDOM, supra note 219, at 352).
221. Id. at 38. Gray offers marriage as an example of this third kind of incommensurability. In some
more traditional societies, marriages are arranged and the idea of romantic love rejected in favor of
personal and social compatibility and the economic benefits reaped by the partners and their families. By
contrast, most liberal cultures “reject ideals of marriage in which personal choice and romantic love are
not central.” For Gray, this is not a cultural variation on a shared ideal but a case of “different and
opposed ideals.” Id. at 40.
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The liberal algebra is intended to resolve these different types of conflict
by specifying a scheme of basic rights (or a public-private divide, or both)
satisfying the two conditions of compossibility and adequacy. One of the
ways it appears to achieve this is simply by removing from the scheme of
liberties those rights that make obviously incompatible claims. This strategy
is evident in the evolution of Rawls’s notion of basic rights. In A Theory of
Justice, Rawls defended the priority of liberty over other values by advancing
the “Greatest Equal Liberty Principle,” according to which each individual
has the most extensive liberty subject to others having the same, restrictable
only for the sake of liberty.222 But as H.L.A. Hart famously demonstrated,
this principle suffers from a disabling indeterminacy. Claims about the
greatest liberty are not freestanding and depend on judgments concerning
the relative value of the human interests that different liberties protect.223
Different views of human goods will therefore generate competing judgments about what constitutes the greatest liberty (or the meaning of “equality” or the Millian “harm” principle, for example). If this is correct, then
there can be no perfect way to protect all liberties, and compromises between rival ideals involving conflicts of value are inevitable.224
On account of Hart’s critique, Rawls, in his Political Liberalism, replaced
the idea of the most extensive system of liberty with an account of the “basic
liberties.”225 But as Gray argues, this strategy merely replaced the problem
of indeterminacy with that of arbitrariness in the selection of the basic
liberties.
The absence of important liberal freedoms from Rawls’s list of basic
liberties is not inadvertent. It flows from an insuperable difficulty in
his theory. The choice of some liberties as basic presupposes an evaluation of the human interests they protect. People with differing conceptions of human interests, or who differ in the importance they give to
the interests they agree in recognizing, will make different judgments
as to which liberties are basic.226
Adopting the same social contractarian methodology, Rawls later proposed
an even further narrowed-down list of basic or “urgent” rights in his Law of
222. JOHN RAWLS, A THEORY OF JUSTICE 124, 250, 302 (1972).
223. Hart cites the example of rules of order in debate, which restrict the liberty of speakers, to
illustrate this indeterminacy. Such rules exist not so that speakers can exercise the maximum freedom to
speak, but rather to achieve the purposes of debate (i.e., to exchange arguments, pursue the truth, etc.).
See H.L.A. Hart, Rawls on Liberty and Its Priority, in H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 223–47 (1983).
224. It may be objected that conflicts between rights raise problems not of incommensurability per se
(which suggests the impossibility of any universal theory of justice) but rather of reaching a coherent
conception of “reasonableness” (in the Rawlsian sense). But here, again, the difficulty we face is how to
reach such a conception when we lack the scales to weigh conflicting liberties and the divergent conceptions of the good and human well-being that these liberties protect.
225. JOHN RAWLS, POLITICAL LIBERALISM 289–368 (Columbia University Press 1996) (1993).
226. GRAY, TWO FACES OF LIBERALISM, supra note 107, at 73.
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Peoples as he sought to advance a theory of human rights applicable to the
religiously and culturally more diverse conditions present at the international level. This “special class of urgent rights” was said to include a “sufficient measure of liberty of conscience to ensure freedom of religion and
thought,” though not an “equal liberty.”227
By each successive move, Rawls sought to shield liberal principles from
the pluralism to which they are supposed to be a response. This is because it
is only if the basic rights themselves do not make incompatible demands
that justice can be secured from conflicts of value. But the result is that
rights no longer track the human interests they exist to protect. Nothing is
easier than resolving a conflict among rights by deleting one of them. To do
so, however, is to suppress the source of the conflict in ethical life—the fact
that vital human interests are at odds. Since each and every right protects
interests that may be at odds, the end of the road for this strategy is an
account of rights that is so far removed from the facts of ethical life as to be
practically vacuous.228
The complete absence of group rights from Rawls’s construction of the
liberal algebra, or even recognition of the serious conflicts generated by the
collective aspects of individual rights, is a predictable consequence of this
avoidance strategy.
As seen in the cases of both Kokkinakis and the Danish cartoons, as soon as
these missing values are reintroduced into moral and political theorizing (as
they necessarily must be in international human rights law), the twin assumptions of compossibility and adequacy are quickly rendered utopian.
Faced with genuine conflicts of rights, any evaluative choice between these
alternatives will quickly lapse into the language of “balancing,” “weighing,” or even “trading-off” of values.229 It is far from clear, however, how to
resolve what are in effect conflicting demands arising from conflicting values
or moral viewpoints. And, of course, any resort to a utilitarian conception of
the public interest or an ethical conception of a collective good will conflict
with the initial justification of the basic liberties themselves, leaving us once
again enmeshed in the conflict of values that we had hoped to avoid.230
227. RAWLS, LAW OF PEOPLES, supra note 19, at 65 & n.2. This is because in societies based on an
“associationist social form,” whether religious or secular, members are “viewed in public life as members
of different groups, and each group is represented in the legal system by a body in a decent consultation
hierarchy.” Id. at 64. In such societies, “one religion may legally predominate in the state government,
while other religions, though tolerated, may be denied the right to hold certain positions.” Id. at 65 n.2.
Rawls refers to this as permitting “liberty of conscience, though not an equal liberty.” Id.
228. GRAY, TWO FACES OF LIBERALISM, supra note 107, at 46–47.
229. For example, the artificiality of categorical approaches to interpreting fundamental rights or
“contouring” away conflicts between them may be compared to forms of ad hoc balancing where the
demands of certain rights are held to override or defeat others for reasons of the “public interest” or other
conceptions of societal goods. For discussion of categorical versus balancing approaches to interpreting
claims of right, see supra note 36 and accompanying text. For Rawls’s idea that the basic liberties must be
“contoured” so that conflicts among them are removed and they constitute a harmonious set, see RAWLS,
POLITICAL LIBERALISM, supra note 225, Lecture VII.
230. As Koskenniemi has argued, liberalism
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Let me illustrate this point a little further with Jeremy Waldron’s recent
example of the entrepreneurial pornographer (P) who enjoys the public sale
and display of his pornographic wares, and the devout Muslim (Q) who abhors pornography and, according to the dicates of his religious beliefs,
wishes to live and raise his family in a society free of the public displays of
P.231 Waldron has argued that this example poses severe difficulties for
Kantian algebraic liberalism and for the two liberal requirements of compossibility and adequacy. The fundamental Rawlsian concept of “reasonableness” is unable to resolve the dilemma that P and Q are unable to live
together in a liberal arrangement.232
The reasons for this are as follows. The first meaning of Rawlsian reasonableness—that persons accept the subjection of the good to the right—cannot tell us who as between P and Q has a conception of the good that is
incompatible with liberal principles.233 The second meaning of Rawlsian
reasonableness—that people have conceptions of the good whose divergence
from other conceptions is intelligible in light of the so-called “burdens of
judgment” —is similarly unable to tell us which of P’s or Q’s conceptions of
the good are “unreasonable.”234 Waldron then asks whether the late Rawlsian strategy of the need to state one’s conception of the good in “publicly
accessible terms” will not reveal that the problem with Q’s conception of a
certain public moral environment free of pornography and blasphemy is that
“it depends on premises that are internal to his religious faith, and that
might seem perhaps arbitrary from an external point of view.”235 But for
Waldron this approach will not work either:
I don’t think there is any way of saying that a set of permissions is
adequate for the practice of a religion except by paying attention to
how that set of restrictions seems from the internal point of view of the
religion. To abandon any interest in that would be, in effect, to abandon any real concern for adequacy. An externally stated adequacy con-
assumes that a set of fundamental rights or a natural distinction between private and public
spheres exist to guarantee that liberty is not violated. But this blocks any collective action as
the content of those freedoms (either as “rights” or a “private sphere”) can be justifiably
established only by reference to individuals’ views thereof. Collective action becomes possible
only by an utilitarian interpretation of the descending argument. But utility conflicts with
rights.
KOSKENNIEMI, supra note 116, at 66–67.
231. See Waldron, supra note 106, at 19.
232. Id. at 21.
233. The subjection of the good to the right refers to the “willingness to tailor [one’s] ends so that
they can be practiced on fair terms with the practice of the ends of others, similarly disciplined.” Id. at
22.
234. Waldron describes the Rawlsian term “burdens of judgment” as a “quasi-epistemic conception,
comprising the various hazards, vicissitudes and perspectives in the conscientious exercise of people’s
powers of reason and judgement in the circumstances of modern human life.” Id. at 22.
235. Id. at 23.
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dition—which was quite at odds with internal conceptions—would be
arbitrary and unmotivated.236
Finally, imagining someone in the classic Rawlsian original position who is
unsure whether he will turn out to be P or Q, we again face a predicament.
This is because our imagined person
wants to leave room for the possibility that he may hold sensitive religious convictions, and he wants to leave room for the possibility that he
may hold a conception whose practice sits ill with those sensitivities.
What is he to do? He cannot gamble with his ability to discharge
whatever religious obligations he turns out to hold, by plumping either for a principle that favors a given sensitive aim or for a principle
that favors pornographic aims. He faces a dilemma. The actual incompossibility of aims of these various types is represented in the intractability of this decision problem for each person behind the Rawlsian veil
of ignorance.237
By defining religion a priori in Protestant, Enlightenment terms as private “conscience”—and thus restricting the “field of aims” among which
compossibility is to be sought—the real dilemmas involving religion in
terms of its public role in shaping a communal set of practices and collective
way of life are thereby not resolved, but simply avoided.238 In relation to P
and Q, then, Waldron concludes that there is “no determinate solution to
the problem of compossibility” of rights, with the result that
we can no longer confront issues like the case of Salman Rushdie with
the conviction that there is a perfectly good solution of live-and-letlive, if only people would restrain themselves sufficiently to adopt it.
There is no such accommodating solution. It means that we can no
longer organize liberal aspirations around the formula of the kingdom
236. Id. The meaning of an “externally stated adequacy condition” (i.e., the meaning of the norm of
freedom of religion itself) cannot be determined without taking into account the “internal point of view”
of particular religious traditions. The connection between the right and the good is thus far closer and
more dynamic historically and culturally than Rawls imagines. In this respect, Rawls’s use of the terms
“religion” or “conscience” in his theory of justice are tacitly defined according to a particular conventional content which, as we see here, is contested.
237. Id. at 24.
238. As Waldron suggests, once we consider the great variety of religious conceptions actually in the
world (whether, for example, those of small, intensely sectarian, insular groups; those of cosmopolitan
scale religions like Islam and Catholicism; those of religions with monastic ideals and others that emphasize community action; those of spiritual “sects” or “cults”; or those of secular atheists), we have to
“come to terms with the fact that people pursue not only different aims, but aims with different and
disparate shapes.” Id. at 18. As he further notes, the rejection of the idea that the abstract, universal right
to freedom of religion “entails equal or uniform rights at a more concrete level” leads to a conception of
complex (rather than formal) equality, in which the rights of differently-situated persons will turn out to
“differ in detail.” Id. at 19, 35 n.10.
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of ends. The algebra intimated in Rawls’s principle of an adequate liberty for each, compatible with a similar liberty for all, is insoluble.239
It is for these reasons that the problems of incommensurability and incompossibility raise a critical challenge to the overall efficacy of the notion
of a liberal algebra based on a fixed structure of rights. We are left to ask
whether the liberal premise itself rests either on a misunderstanding—because it fails to take seriously the incommensurability of certain values—or
on an impossibility—because not everyone’s individual freedom can be
respected and ensured consistently with the freedom of everyone else.240 Liberal theory can resolve such conflicts only by (tacitly) positing a hierarchy of
values—or perhaps a single, trumping, “covering value”—or by drawing
“domain restrictions” between spheres of incommensurable values (for example, between a putative public “secular” sphere and a private “religious”
sphere) and by then developing theories of toleration based on open-textured
principles such as “reasonableness” (in liberal political philosophy) or “decency” (in Rawls’s Law of Peoples).
In this respect, liberal rights discourse may be viewed as only one of many
possible forms of value pluralism. Brian Barry is correct that the development in Rawls’s thought from comprehensive to political liberalism comprises a “rather muddled version of Michael Walzer’s anti-Enlightenment
particularism.”241 Barry, however, argues that in order to remedy this perceived “deficiency” in Rawls, we must reassert the need for a refortified
cosmopolitanism—a utopian quest for a final, rationalist, but inevitably ethnocentric, monism.242 By contrast, I suggest that we need to understand
why Rawls thought it necessary to adjust his scheme of basic liberties over
time. This inquiry, I believe, will point us toward a non-foundational, and
hence perpetually self-(re)creating, attempt to find an overlapping consensus
on a plurality of equally ultimate, equally sacred—but intrinsically incommensurable—values.
B. Rights and the Search for “Foundations”
Steven Lukes has suggested that in post-Enlightenment political theory,
rights function as secular expressions of the “sacredness” of certain values.
Rights characterize those values to which “we devote ourselves to maintaining . . . without calculating the loss involved, by omitting or refusing to
commensurate the benefits against the cost”; such values are identified with
239. Id. at 33.
240. Iris Marion Young terms this account of moral reason the “view from nowhere,” and describes
the “ideal of impartiality” as expressing an “impossibility, a fiction.” IRIS MARION YOUNG, JUSTICE AND
THE POLITICS OF DIFFERENCE 103 (1990) (citing THOMAS NAGEL, THE VIEW FROM NOWHERE 63
(1986)).
241. BRIAN BARRY, CULTURE AND EQUALITY: AN EGALITARIAN CRITIQUE OF MULTICULTURALISM
331 n.27 (2001).
242. Id.
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the “inviolability of persons . . . constraining or ‘trumping’ consequentialist,
and in particular utilitarian, considerations.”243 The consequence is that “it
is not only believers and particularists and conservatives and romantics and
traditionalists who treat their favourite values as sacred: liberals do so
too.”244
The difficulty in liberal theorizing has always been how to advance a
sound theoretical foundation for rights that can explain and justify their
“sacredness” and priority over conflicting claims of the good. Even a cursory
review of the history of the social contractarian tradition reveals how different accounts of any pre-social state of nature yields different conceptions of
basic rights. The question therefore logically arises: If liberal theorists from
Hobbes to Pufendorf to Rawls and their respective followers disagree not
only about comprehensive philosophical conceptions of the good, but also
about the fundamental principles of justice and right themselves, how are
we to arrive at a secure foundation for human rights? How are we to know
whether human nature is asocial in the Hobbesian sense and thus the only
natural right is that of self-preservation, or is inherently social in the
Pufendorfian sense and thus a richer account of natural rights is possible,
one that includes notions of gratitude and mutual assistance (a basic right to
subsistence)?245
As noted in the previous section, Rawls sought to address this problem in
his later work through the notion of an “overlapping consensus” by which
people adhering to different comprehensive religious, philosophical, and
moral doctrines may affirm the same conception of justice on different moral
and political grounds. But as Jeremy Waldron has argued, this maneuver
does not resolve the dilemma of “justice-pluralism” and “disagreement
about rights.” Waldron identifies two models for thinking about the relation between disagreements about justice and disagreements about the
good.246 On the first model, “each conception of the good is associated with
or generates a particular vision of the just society.”247 On the second model,
243. STEVEN LUKES, LIBERALS AND CANNIBALS: THE IMPLICATIONS OF DIVERSITY 68 (2003). In order
to illustrate the idea of “sacred values,” Lukes distinguishes between the metaphor of a “trade-off”
(which suggests that “we compute the value of the alternative goods on whatever scale is at hand,
whether cardinal or ordinal, precise or rough-and-ready”) and a “sacrifice” (which suggests such “total
and one-sided commitment to one point of view, with its associated background of belief and faith . . .
[that] devotion to the one exacts an uncalculated loss of the other”). Thus, to be “sacred is to be valued
incommensurably.” Id. at 67.
244. Id.; cf. MICHAEL WALZER, THICK AND THIN: MORAL ARGUMENT AT HOME AND ABROAD 15, 18
(1994) (arguing for a “thin,” “minimalist,” and “non-foundational” morality expressed in such general
values as “truth,” “justice,” “life,” and “liberty,” constructed by “abstracting from social practices
reiterated in many countries and cultures”).
245. See generally RICHARD TUCK, THE RIGHTS OF WAR AND PEACE: POLITICAL THOUGHT AND INTERNATIONAL ORDER FROM GROTIUS TO KANT 148 (1999) (arguing that the great contribution of Pufendorf
was thus to show that both “Grotius’s and Hobbes’s theories about the conversion of interests into rights
could be used as the basis for a quite different set of political conclusions”).
246. JEREMY WALDRON, LAW AND DISAGREEMENT 149–50 (1999).
247. Id.
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“particular theories of justice are not seen as tied to or generated by particular conceptions of the good” but instead “are viewed as rival attempts to
specify a quite separate set of principles for the basic structure of a society
whose members disagree about the good.”248
In the first case, disagreements about justice are the result of disagreements about the good, whereas in the second, they are motivated quite separately. How, Waldron asks, does a “less-than-well-ordered society, in which
people disagree about the fundamentals of justice” make the transition to a
“well-ordered society in which one particular conception of justice . . . is
enshrined as a framework for public reason?” The problem is that so long as
“each competing conception of the good generates its own conception of
justice . . . it is impossible for competing conceptions of the good to be
related to a single conception of justice (such as [Rawls’s theory of justice as
fairness]) in the strong moral relation that Rawls refers to as ‘overlapping
consensus.’” 249 Even if over time a single conception of justice is able to
become more than a mere modus vivendi and to secure the moral allegiance of
competing comprehensive conceptions, this does not resolve the initial question of how we are to reach agreement on any specific set of human rights
norms or indeed any single starting conception of justice.
For this reason, the problems of rights foundationalism within the social
contractarian tradition are irresolvable. There is simply no single, objective
foundation for human rights to be found, whether in a putative state of
nature, in a psychological conception of human nature, or in any unimpeachable theory of the relationship between individual autonomy and political order. As Gray suggests in arguing that rights claims are never
foundational, “human rights have neither substantive content nor moral
weight until their impact on human interests, their contribution to human
well-being, has been specified.”250
This dilemma can only meaningfully be addressed by recognizing that
human rights are not fixed entities to be arrived at either by abstract deontological deduction or (tacit) consensual agreement alone, but rather are sites
of contestation and tension straddling opposing spheres—mediating between consent and justice, autonomy and community, freedom and order,
passion and rationality. Critical legal scholars have thus suggested that
human rights are best understood as mediators between the domains of factual and value judgments. The difficulty for liberal theory is that, on its own
assumptions, it cannot consistently justify the normative, objective character
of rights without resorting to concrete principles that, in turn, it is then
248. Id.
249. Id. at 162. This will be, at best, a mere modus vivendi. If, however, a single (liberal) conception of
justice is able to secure itself for a period of time as a modus vivendi, “it may cause each of the justicecomponents of those comprehensive conceptions to gradually lose ground, even within its generating
conception,” with the result that different comprehensive conceptions are left to “forge a genuine moral
allegiance” to that single conception of justice. Id. at 162–63.
250. GRAY, ENLIGHTENMENT’S WAKE, supra note 18, at 72.
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unable to justify. The practical consequence for the politics of justice, as
Waldron suggests, is the “problem of selecting a substantive principle of
justice to act on (together) when we disagree about which principles are true
or reasonable and which not.”251
The role of human rights as a mediating or straddling concept has important implications for legal theory and, in particular, for our understanding of
the right to freedom of religion in international law. The indeterminacy of
rights discourse in political philosophy is unavoidable whether at the domestic or international level (and indeed more so under the more diverse
conditions of the latter). Accordingly, once liberal accounts of human rights
are transposed to the international sphere, they will suffer from the same
conflicts and incommensurabilities as in the domestic case. They will claim
the two sides—objectivity and formality—of law in contrast to the subjectivity of politics in either its utopian or apologist form. But they will fail to
provide a convincing argument or theoretical basis for their favored set of
“fundamental” or “basic” liberty norms. Indeed, these are the very questions that rights discourse seeks to refer away from itself, thereby maintaining the illusion of the objectivity and compossibility of rights while hiding
their deeper incommensurability. In the absence of a practical philosophy of
critical praxis, rights discourse is unable to reconcile the contradictory demands of individual freedom and social order.252
As argued in the previous section, this creates the danger that rights discourse can appear coherent only by adopting a legal formalism that distances
theorizing about justice from the actual full-blooded disagreements that exist among individuals and communities in political societies. This is exacerbated if one or more rights are simply removed from the liberal algebra in an
attempt to shield it from the reality of value pluralism. In this respect, many
contemporary forms of “impartial” or “objective” reasoning about rights are
generally insensitive to divergences of judgment about human interests and
well-being. The unmasking of the partiality and historicity of liberal rights
discourse is therefore the first step toward perceiving the need for value
pluralism. As argued by Iris Marion Young:
Insistence on the ideal of impartiality in the face of its impossibility
functions to mask the inevitable partiality of the perspective from
which moral deliberation actually takes place. The situated assumptions and commitments that derive from particular histories, experiences, and affiliations rush to fill the vacuum created by counterfactual
abstraction: but now they are asserted as “objective” assumptions
251. WALDRON, LAW AND DISAGREEMENT, supra note 246, at 161.
252. For a recent attempt to respond to the failure of rights foundationalism in international law, see
Raz, supra note 21 (advancing an antifoundational “political conception” of human rights setting limits
to the sovereignty of states).
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about human nature or moral psychology. The ideal of impartiality
generates a propensity to universalize the particular.253
The propensity for impartiality in moral reasoning constructs an over-determined division between normality/deviance and neutrality/particularity.254
Situated identities that differ from those of the dominant group are thereby
silenced or designated as inferior. Any claims by oppressed groups challenging the alleged neutrality of the legal order are thus heard as those of “biased, selfish special interests that deviate from the impartial general
interest.”255 It is only by exposing the partiality of the supposedly universal
normative order that one can begin to confront forms of hierarchical decisionmaking that perpetuate the oppression of disadvantaged or marginalized
groups. This requires a view of rights discourse not in terms of an imagined
universal rationality with the abstract individual as subject, but rather in
terms of a dialogic conception of moral reason that is the product of the
“interaction of a plurality of subjects under conditions of equal power that
do not suppress the interests of any.”256 On this pluralist view, to seek to
posit an objective foundation for rights in either an exclusively normative or
exclusively consensual theory risks only catastrophe—the possibility of a
single, ruthless, and fanatically pursued “final solution” on the one hand;
the possibility of a blind, obscurantist irrationalism on the other.257
C. Communal Goods and Individual Rights
The rejection of rights-foundationalism in favor of value pluralism leads
to a third and final area of critique: liberal theory’s blindness to the value of
communal goods. For present purposes, I wish to make just two observations on the role of autonomous choice in different forms of human flourishing.258 The first is to call into question the abstract conception of a “free”
liberal self denuded of any specific cultural or communal identity or historical inheritance (complete with all their conflicting demands). The second is
253. YOUNG, supra note 240, at 115.
254. “Moral reason that seeks impartiality tries to reduce the plurality of moral subjects and situations to a unity by demanding that moral judgment be detached, dispassionate, and universal. But . . .
such an urge to totalization necessarily fails. Reducing differences to unity means bringing them under a
universal category, which requires expelling those aspects of the different things that do not fit the
category. Difference thus becomes a hierarchical opposition between what lies inside and what lies
outside the category, valuing more what lies inside than what lies outside.” Id. at 102.
255. Id. at 116.
256. Id. at 106. Against the idea of a “fictional contract,” Young thus states that if “normative reason
is dialogic, just norms are most likely to arise from the real interaction of people with different points of
view who are drawn out of themselves by being forced to confront and listen to others. Just decisionmaking structures must thus be democratic, ensuring a voice and vote to all the particular groups involved in
and affected by the decisions.” Id. at 116. This intersubjective conception of rights discourse arising from
the concrete encounter with others is similar to Jürgen Habermas’s notion of “communicative ethics.” See
supra note 6.
257. LUKES, supra note 243, at 89–90.
258. For a detailed discussion, see Danchin, supra note 16, at Part V.A.
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to observe that, in practice, the subject claiming freedom of religion is more
often collective than personal.
On the first point, value pluralists such as Joseph Raz have emphasized
the collective aspects of liberal rights and the limits of rational choice by
showing that while rights protect the well-being of individuals, autonomous
choice will only have value in a context of choice-worthy options and cultural environments possessing a range of inherently public goods. Raz has
therefore observed how claims of the role of rights in securing individual
freedom have historically been advanced against such a natural social background of collective goods that their “contribution to securing the very ends
which were supposed to be served by the rights was obscured, and all too
often went unnoticed.”259 He notes, in particular, that in seeking to understand the history of liberalism, it is of great importance to realize that the
right to religious freedom, which is so intimately tied to the early growth of
liberal ideals, was “bound up with the existence of a public culture in which
religion was a social institution.”260 The collective dimensions of individual
rights—their role in fostering a public culture enabling people to value and
take pride in their identity as members of distinct groups—is thus a critical
factor in the story of religious freedom. This obliges us, at a minimum, to
question the Enlightenment conception of individual freedom as being in
some essential way opposed to or independent of collective goods such as
religion, culture, and tradition. Rather we need to ask, with Raz, whether
personal freedom and autonomy may not be better conceived of as elements
in the protection of collective goods, or as valuable simply because they
depend on and serve those collective goods.261
On the second point, well-known communitarian critics of liberalism
such as Michael Sandel, Alasdair MacIntyre, Charles Taylor, and Michael
Walzer have challenged the exclusive subjectivity of the individual in political theory.262 Whether we look to Rawls’s “basic liberties,”263 Nozick’s
259. JOSEPH RAZ, THE MORALITY OF FREEDOM 250–51 (1986).
260. Id. Raz argues that “inasmuch as religion is and was a social institution embracing a community,
its practices, rituals and common worship, the right to free religious worship, which stood at the cradle
of liberalism, is in practice a right of communities to pursue their style of life or aspects of it, as well as a
right of individuals to belong to respected communities.” Id.
261. Id. at 254. As Raz observes, this is not to say that fundamental rights are not in competition
with other collective goods, or that they do not conflict with other rights. On the contrary, the point is
merely that “there is no general rule giving either rights or collective goods priority in cases of conflict.”
Id. at 255.
262. See generally ALASDAIR MACINTYRE, WHOSE JUSTICE? WHICH RATIONALITY? 344–45 (1988) (arguing that the liberal claim to morally justified ethical neutrality and toleration conceals the fact that
liberalism is based on a “particular conception of the good life” and is therefore one tradition among
others without any necessary moral claim to priority); MICHAEL SANDEL, LIBERALISM AND THE LIMITS OF
JUSTICE (1982); MICHAEL WALZER, WHAT IT MEANS TO BE AN AMERICAN 30 (1996) (distinguishing
between “New World” and “Old World” pluralism and arguing that New World pluralism severs the
link between citizenship and any single nationality such that citizenship in the New World requires
commitment only to the abstract ideals of “liberty, equality and republicanism”); Michael Sandel, Religious Liberty: Freedom of Conscience or Freedom of Choice?, 3 UTAH L. REV. 597 (1989) (noting the danger that
ethical conceptions of a norm such as freedom of religion or belief that do not conform to a liberal theory
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“side constraints,”264 or Dworkin’s “rights as trumps,”265 the assumption is
that the “subject matter of justice cannot, except indirectly, be found in the
histories of peoples, and their often tragically conflicting claims; it must
always be a matter of individual rights.”266 Value pluralism, by contrast,
seeks to recognize and understand the claims of collective subjects (peoples,
nations, minorities) and the complex role played by collective values in any
theory of justice. This was the lesson of the restrictions imposed on proselytism in Russia and in post-colonial African states discussed in Part III above.
VI. CONCLUSION
This Article has not sought to advance a new theory of religious freedom
in international law, or to map out the various implications of value pluralism for a theory of human rights. Rather, it has pursued the more modest
task of seeking to identify the conceptual shifts that must occur for such
theorizing to begin. The three lines of critique in Part V raise unsettling
questions for liberal accounts of the right to freedom of religion and belief.
The first argument concerning incommensurabilities among ultimate values, and critically within such values themselves, suggests certain limits to
the rationalist ambition of advancing a tidy and universally applicable theory of religious freedom. Mill’s Harm Principle simply does not enable subjects with different conceptions of the good to reach an unforced consensus
of the good, especially those premised on “deep”—that is, sensitive and “public”—communal bonds,
will thereby become marginalized and excluded); Charles Taylor, The Politics of Recognition, in CHARLES
TAYLOR ET AL., MULTICULTURALISM: EXAMINING THE POLITICS OF RECOGNITION 37–39 (Amy Gutman
ed., 1994) (contrasting two modes of politics, one of “equal dignity” and the other of “difference,” and
arguing that “the development of the modern notion of identity, has given rise to a politics of difference”
that requires us to recognize and encourage particularity and which is also underpinned by a “principle of
universal equality”); Charles Taylor, Modes of Secularism, in SECULARISM AND ITS CRITICS 36–37 (Rajeev
Bhargava ed., 1998) (arguing that viewed from a non-Western perspective, the right to freedom of
religion and belief appears inextricably linked to its Christian origins both in the form of post-Enlightenment Deism and the rise of Western unbelief and secularism and that, in both cases, it “understandably
comes across as the imposition of one metaphysical view over others, and an alien one at that”); MICHAEL
WALZER, SPHERES OF JUSTICE: A DEFENCE OF PLURALISM AND EQUALITY (1983); Michael Walzer, Comment, in CHARLES TAYLOR ET AL., supra, at 99–100. For general discussion on these themes, see STEPHEN
MULHALL AND ADAM SWIFT, LIBERALS AND COMMUNITARIANS (1992).
263. RAWLS, A THEORY OF JUSTICE, supra note 222, at 61 (stating that the “basic liberties of citizens
are, roughly speaking, political liberty (the right to vote and to be eligible for public office) together
with freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of the
person along with the right to hold (personal) property; and freedom from arbitrary arrest and seizure as
defined by the concept of the rule of law”).
264. ROBERT NOZICK, ANARCHY, STATE AND UTOPIA 29 (1974) (positing the strict deontological
view that the “rights of others determine the constraints upon your actions” and that this “side-constraint view forbids you to violate these moral constraints in the pursuit of your goals”).
265. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 92 (1978) (discussing the “weight” of individual rights and suggesting that we should “stipulate not to call any political aim a right unless it has a
certain threshold weight against collective goals in general”).
266. GRAY, ENLIGHTENMENT’S WAKE, supra note 18, at 5. The consequence is that the “diverse
claims of historic communities, if they are ever admitted, are always overwhelmed by the supposed rights
of individuals.” Id. at 6.
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on when and how liberty should be constrained. Comparative judgments of
harm or what it means to treat people as equals will vary according to different views of human interests. Given that this will create disagreements not
only as to the meaning of harm but also as to which human interests are
morally significant, the quest for a universal conception of value neutrality
will therefore always be fraught and contested.
This suggests that whatever theory we advance needs to be sensitive and
closely correlated to the realities of the life of actual normative communities.
Such a shift in perspective moves us away from the single-minded search for
freestanding universal principles and back toward actual political life characterized as it is by intractable conflicts between different ways of life. The
animating virtue for such an approach is toleration rather than neutrality
and the need to balance competing claims of similar validity rather than to
prescribe a universal regime. This ethos underlies Gray’s “agonistic” theory
of liberalism that asks us to recognize the contingency of both selfhood and
community and to recognize that liberal selves and cultures are themselves
particular social forms and cultural traditions.267
The second argument concerning the search for secure foundations for
human rights raises important questions concerning philosophical method.
Given the first argument’s skepticism regarding any determinate and fixed
set of compossible or dovetailing liberties, we have strong reasons to be
skeptical regarding any agent-neutral political morality that claims to rest
not on particularlistic loyalties or conceptions of the good but rather finds
its “foundations” in exclusively deontological universal principles of justice
or rights. If correct, this suggests that the search for a definitive list of basic
liberties is itself misconceived and any structure or scheme of rights that
claims to promote and protect different human interests will necessarily be
indeterminate and significantly variable.
This humbling conclusion does not leave us mired in a hopeless nihilism
of ethical and moral relativism. Value pluralist accounts of human rights
acknowledge both the incommensurability of values and the historicity of
understanding and meaning. They suggest that these two insights open new
pathways to dialogic and hermeneutic approaches to rights discourse which
seek to transcend the Cartesian anxiety generated by the dichotomy between
subject and object and seek to recover, rather than deny, the indispensability
of prejudice and tradition to any defensible conception of understanding and
meaning. A prominent example of this kind of approach is Charles Taylor’s
attempt, applying the insights of Gadamer’s philosophical hermeneutics to
Rawls’s idea of overlapping consensus to articulate a method by which we
may reach a “genuine, unforced international consensus” on human
rights.268
267. Id. ch. 6. The word “agon” means a contest or rivalrous encounter. Id. at 68.
268. Charles Taylor, Conditions of an Unforced Consensus on Human Rights, in THE EAST ASIAN CHALLENGE FOR HUMAN RIGHTS 124 (Joanne R. Bauer & Daniel A. Bell eds., 1999).
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Finally, the third argument concerning the connection between individual autonomy and collective goods raises difficult questions about the role of
autonomous choice in different forms of human flourishing. While I have
not pursued the question here, this should at least alert us to the dangers of
rights discourse embodying the unconscious prejudices of a particular tradition, for example in positing a single, rigid and dogmatic horizon of individual freedom. Such an approach forecloses the possibility of any fusion of
horizons with other conceptions—conceptions that may well contain admirable and valuable insights and other forms of accommodation. A value pluralist approach, by contrast, opens the way to a less dogmatic and binary
account of reason and religion in viewing both as human institutions and
social practices requiring modes of justification and accountability. This requires the constant search for forms of accommodation, mutual understanding, and overlapping consensus between actual communities and the
normative claims of rights discourse. In order for this to occur, however, a
significant obstacle remains the inability of many Western rights theorists
to see their culture as one among others.
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